ISSN (Print) - 0012-9976 | ISSN (Online) - 2349-8846

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Mapping the Narrative of Environmental Law

Development of Environmental Laws in India by Kanchi Kohli and Manju Menon, New York: Cambridge University Press, 2021; pp 367, $41.99.

Environmental law in India exhibits dimensions of rapid but haphazard development as a field of practice and knowledge. It has evolved within the context of the political economy of the environment versus development debate. Multiple institutional actors such as Parliament, the judiciary, and regulatory agencies (Lele and Sahu 2021) have a role in the policy formulation process with increasing complexity. The Review of Environment and Development issue in the Economic & Political Weekly (Vol 56, No 52, 25 December 2021) exploring contested problems ranging from water governance to climate change policy is an ideal example of varied and mired topics that academics and policy practitioners could and need to explore in the environmental regulation context. Hilson (2021), in an article, quips that “narrative has an important role to play in bringing environmental law alive and, potentially, in making it a more effective and inclusive force.” How do we breathe life into environmental law discourse in India? The answer lies in building and understanding the narrative of push and pull factors on environmental policy, law, and institutions.

How the environmental law applies in practice is still top-down and command-control based. For example, when legislation such as the Biodiversity Act, 2002 talks about the Peoples’ Biodiversity Register to be prepared at the village level, it largely remains an ignored component of biodiversity governance architecture. The law, in practice, is quite far from the black letter of the law. The State Biodiversity Boards are not empowered to function in a proper manner in the issues relating to access and benefit sharing (ABS), which has resulted in the dilution of the biodiversity law. The Forest Legislation Act is yet another example of the tussle witnessed where the indigenous communities’ issues are primarily unaddressed, leading to diffused legislation. The book by Kanchi Kohli and Manju Menon, Development of Environmental Laws in India, helps to carve out a narrative of the complex governance and regulatory issues in Indian environmental law.

Relevance

The need for a comprehensive analysis of India’s environmental law is long overdue. Especially, the key developments such as climate change law and policy, biodiversity law, and water law have been explored in this book. The evolving field of research-based scholarship in the field of environmental law in India is starkly evident. The book tries to strengthen the scholarship by evolving a comprehensive coverage of the broad canvas of the environmental issues from a legal perspective in the Indian context. The authors of the book comment on the broadening canvas of environmental governance while stating that the environmental law scholarship “can benefit greatly if it is seen in relation to power relations, resource politics, and national and international political economy” (p 3). Key works such as Shyam Divan and Armin Rosencraz’s (2001) En­viron­mental Law and Policy in India: Cases, Materials and Statutes have analysed environmental laws predominantly from the judicial–jurisprudential dimension.

The institutional actors such as government-appointed committees, line ministry and regulatory governance and specialised adjudicatory role of the National Green Tribunal (NGT) are largely unexplored positions in a single book. Here Menon and Kohli have undertaken an ambitious task of coherently exploring regulatory, institutional, governance and judicial developments in the Indian environmental law-scape. While setting the context, it is significant to note that the political overtones and their influence on environmental policymaking need to be emphasised upon. As the authors themselves point out, “the roles and functions of Indian environmental law are better understood when they are seen as political tools and not only as legal and regulatory instruments” (p 2). They focus on four sets of actors in the environmental context: international actors, courts, government, and regulatory institutions.

Overview

The scheme of the book deals with the building blocks of Indian environmental law in the introduction along with the initial two chapters. In this regard, Chapter 1 deals with the conceptual foundation of environmental law. Chapter 2 deals with the institutions regulating Indian environment, broadly classified by the authors as “judicial,” “parliamentary,” “government,” and “statutory.” In this initial part of the book, the constitutionalisation of environmental law by the judiciary is well explored by the authors. Considering that the public interest litigations (PILs) and judicial activism have helped in evolving jurisprudence linking the concept of right to life in Article 21 of the Constitution to environmental rights, the thrust given to the topic helps identify the early phase of environmental development in India. A narration of prominent case laws such as Rural Litigation and Entitlement Kendra v State of UP is discussed in helping the readers to identify the role played by judicial institutions in building the edifice for the regulatory and institutional actors to further strengthen the environmental law in India.

The significant emphasis in identifying statutory authorities and committees fo­r­m­ed in the Indian context by the authors has helped in narrating the enormous increase in the bureaucratic structure along with the fragmentation of environmental governance. The representation in these statutory authorities and committees are essentially governmental officials leading to further perpetuation of a command and control structure. The missing element of collaborative governance and participatory approach in the management of natural resources could be well-identified while analysing Kohli and Menon’s work. In the latter part of the book (Chapter 5), the series of subordinate rule-making and committees formed under the Environment Protection Act, 1986, which are discussed with clarity by the authors, also point towards these missing factors. This includes rule-making in pertinent areas such as environmental impact assessment and waste management.

The book takes a thematic focus in exploring the legislative and governance framework relating to forest conservation, pollution control, environmental protection, wildlife and biodiversity conservation, ground and surface water extraction, land acquisition, and climate change policy framework. The salient contribution from the authors is the broader focal point adopted in analysing the emerging policy concerns that arise rather than just touching up the legislation and rules. For example, the section on “Pollution Control and Prevention” (Chapter 4) analyses significant policy developments such as the fly ash and emission standard of coal power plants (p 130).

In this regard, the authors highlight the gap in the norms evolved to tackle the emerging problem of fly ash as a residue of burning coal. They highlight the myopic approach towards the fly ash problem as the norms “do not address the problems caused by the dumping and mismanagement of ash on road sides, river banks and agricultural fields” (p 129). Another major area covered is the problem of regulating the “ecologically sensitive areas.” The authors also analyse the social and political response to the sensitive ecosystem in areas such as the Western Ghats, helping to understand the push and pull factors that emerge in the environmental law and governance implementation process.

Raising Policy Questions

Kohli and Menon raise pertinent policy questions relevant for environmental law in India. One of the significant contributions from the authors is that they touch upon the long-pending demand of an independent environmental regulator in India. The lack of regulatory capacity has led to a teething implementation problem. The issues of the lack of autonomy, conflict of interest, poor compliance, and capacity shortfall in the present scenario of environmental governance are explained as relevant reasons in need for a separate and independent environmental regulator.

Interesting views on the budding area of climate change litigation in India are analysed with the help of NGT case laws (Court on Its Own Motion v State of Himachal Pradesh 2014; Ridhima Pandey v Union of India) by the authors. The authors also analyse the scantly-discussed Indian climate policy framework. These cases have to be understood in the context of climate change accountability litigations evolved in the United States, Netherlands and other developed jurisdictions. The authors have successfully explained the contextual significance of strategic climate change litigations. From an academic perspective, what would be significantly interesting is how the future scholars could use the law and policy questions that the authors have raised.

The authors help in pushing the boundaries of academic knowledge and scholarship regarding emerging issues related to environmental regulations in India. While the scope of the book allows only for providing a narrative and bird’s-eye view, a more detailed academic research would be ideal in taking this work forward as a book series. From a theoretical point of view, the book is indeed an outstanding contribution to the existing scholarship. A case law approach seems to have been intentionally omitted in the book. This has helped in looking at the lens of environmental policy development from an institutional and governance context. Hence, rather than treating the judiciary as the only institutional focus, it is treated as only one of the players responsible for the development of environmental law in India.

From a practitioners’ perspective, it would have been appropriate to include more field-oriented views that legal practitioners and environmental and climate policy experts could have used in their environmental law practice. The imm­ense practical knowledge that the authors have regarding the practitioner problem in navigating the environmental laws require more in-depth analysis in areas such as forest conservation, biodiversity protection, and climate change. Considering the authors’ extensive experience as environmental law practitioners, such an additional perspective to the book would have made it a ready reckoner.

The authors offer immense pointers towards the future direction in Indian environmental law in the final chapter through analysing contemporary environmental law reforms. The analysis of the T S R Subramanian Committee of environmental reforms attempting to bring epoch-making reforms by ensuring minimum governmental interference and the proposal for increased private sector participation in the forestry sector are significantly aiming at changing the face of environmental governance in India.

A significant area that ought to have been included in the book is the evolution of the energy law framework in India. The Energy Conservation Act, 2001, the role of the Bureau of Energy Efficiency as well as the renewable energy push that is evolving in India could have been incorporated. I sincerely hope the authors will develop a more comprehensive reference book towards addressing these elements.

References

Divan, Shyam and Armin Rosencranz (2001): Environmental Law and Policy in India: Cases, Materials and Statutes, New Delhi: Oxford University Press.

Hilson, Chris (2021): “The Role of Narrative in Environmental Law: The Nature of Tales and Tales of Nature,” Journal of Environmental Law, https://centaur.reading.ac.uk/102156/.

Lele, Sharachchandra and Geetanjoy Sahu (2021): “Environmental Regulation and Governance,” Economic & Political Weekly, Vol 56, No 52,
https://www.epw.in/journal/2021/52/review-environment-and-development/en....

 

Updated On : 11th Jul, 2022
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