Page 15 - 5th TERI-KAS Environmental Governance Policy Dialogue
P. 15
Policy Paper
Environment as a subject is not mentioned in any list for still not much clarity on what would be a workable model
centre and state domains. Forests are in the concurrent to ensure environmental protection along with economic
list with environmental protection is enshrined in the development that the states are aiming for and ensure
constitution both as a directive principle and as duty of the that eco system specificities are given importance in policy
citizens. In this effort to preserve environment of which making.
forest is an integral part, the relationship between state
and centre takes various forms. The Indian forest act did Role of judiciary in environmental governance
not talk about jurisdiction of centre and state but since
land is a state subject, in the context of forests, these Judicial intervention and most notably the processes of
substantial areas belong to state. In the first 35-40 years Public Interest Litigations (PILs), have played an important
of independence preservation of forests and maintaining role in the evolution of our stance on environmental issues
forest cover became increasingly difficult and this led to the particularly when the executive and legislature has lacked
Forest Conservation act. This act stipulates that even the in upholding the rule of law. Cases like the Godavarman
forest land that belongs to the state cannot be diverted for case, the Samata case and the MC Mehta case have been
other uses except with the permission of the government instrumental in the evolution of India’s environmental
of India. Compensatory afforestation is an integral part governance framework. However the judiciary is not an
of diversion and has become an interesting instrument administrative body and while the judiciary can establish
leading to a regime for compensatory afforestation. There the ethical and legal stance on issues, actual action and
have been suggestions that the authority that manages implementation still remains out of its domain. The
compensatory afforestation should be an independent judiciary’s role stops at identifying problems and gaps in
agency like a registered society organization which runs the functioning of the executive and the legislature – as a
outside the purview of the government. On the other check on the two – rather than take up the task of solving
hand, there are views that such large sums of money- as are the problem completely on its own and through its own
calculated on the basis of net present value (NPV) of forests devices.
and earmarked for compensatory afforestation - should not The National Green Tribunal (NGT) and similar judicial
be kept outside the control of public spending as forest institutions in 41 countries are creating new precedents
land has been diverted and the NPV and compensatory in legal thinking on environmental issues. But recently, the
afforestation amount has been collected to make up for the issue of judicial overreach has come into light with the
loss of a public asset that has been diverted for non-forest judiciary substituting its wisdom for that of the legislature
purposes. The question still remains as to who exactly or executive, especially when there is a distinction between
would take up the task of compensatory afforestation most matters of law – that can stay only in the purview of the
effectively. judiciary – and matters of policy – that are supposed to
Demarcation of Eco Sensitive Zones (ESZ) has also remain in the purview of the executive and the legislature.
seen disagreement between centre and state. The concept It has also been felt that specialized courts have moved
of eco sensitive zones came into force with the MoEF environmental issues away from being public affairs. Within
order to states to demarcate eco sensitive areas around the judiciary, the operationality of the National Green
national parks and wildlife sanctuaries and in case of Tribunal (NGT) has also had certain loopholes. This creates
inaction, 10 kilometres around the protected areas would top heavy structures of decision making and depreciates
be delineated as ESZ. States on the other hand wanting the powers of the NGT and lower courts to consider
to exploit resources in these areas deemed ecologically environmental issues as seen in the appeals to the Supreme
sensitive were reluctant to demarcate these areas. In the Court against several mining bans directed by the NGT.
last one year that about 200 ESZ have been approved and The NGT model of a centralized and specialized court for
have been notified for consultation after a long drawn environmental issues also faces geographical limitations
process. due to inaccessibility for a majority of people which was
The institutional arrangements between state and the mainstay of the 24 high courts across the country
federal institutions have not been able to facilitate the addressing these cases before. The NGT has decided on 35
outcomes in favour of environmental protection, and the cases in 2011, 91 cases in 2012 and 154 cases in 2013 and
opposite has resulted over the years. Putting aside the some of them have been landmark decisions. But, as stated
lists for central, state and concurrent subjects, there is above, it has undermined the judicial capability to deal with
environmental and social justice issues at the grassroots
level (Raj, 2014).
15
Environment as a subject is not mentioned in any list for still not much clarity on what would be a workable model
centre and state domains. Forests are in the concurrent to ensure environmental protection along with economic
list with environmental protection is enshrined in the development that the states are aiming for and ensure
constitution both as a directive principle and as duty of the that eco system specificities are given importance in policy
citizens. In this effort to preserve environment of which making.
forest is an integral part, the relationship between state
and centre takes various forms. The Indian forest act did Role of judiciary in environmental governance
not talk about jurisdiction of centre and state but since
land is a state subject, in the context of forests, these Judicial intervention and most notably the processes of
substantial areas belong to state. In the first 35-40 years Public Interest Litigations (PILs), have played an important
of independence preservation of forests and maintaining role in the evolution of our stance on environmental issues
forest cover became increasingly difficult and this led to the particularly when the executive and legislature has lacked
Forest Conservation act. This act stipulates that even the in upholding the rule of law. Cases like the Godavarman
forest land that belongs to the state cannot be diverted for case, the Samata case and the MC Mehta case have been
other uses except with the permission of the government instrumental in the evolution of India’s environmental
of India. Compensatory afforestation is an integral part governance framework. However the judiciary is not an
of diversion and has become an interesting instrument administrative body and while the judiciary can establish
leading to a regime for compensatory afforestation. There the ethical and legal stance on issues, actual action and
have been suggestions that the authority that manages implementation still remains out of its domain. The
compensatory afforestation should be an independent judiciary’s role stops at identifying problems and gaps in
agency like a registered society organization which runs the functioning of the executive and the legislature – as a
outside the purview of the government. On the other check on the two – rather than take up the task of solving
hand, there are views that such large sums of money- as are the problem completely on its own and through its own
calculated on the basis of net present value (NPV) of forests devices.
and earmarked for compensatory afforestation - should not The National Green Tribunal (NGT) and similar judicial
be kept outside the control of public spending as forest institutions in 41 countries are creating new precedents
land has been diverted and the NPV and compensatory in legal thinking on environmental issues. But recently, the
afforestation amount has been collected to make up for the issue of judicial overreach has come into light with the
loss of a public asset that has been diverted for non-forest judiciary substituting its wisdom for that of the legislature
purposes. The question still remains as to who exactly or executive, especially when there is a distinction between
would take up the task of compensatory afforestation most matters of law – that can stay only in the purview of the
effectively. judiciary – and matters of policy – that are supposed to
Demarcation of Eco Sensitive Zones (ESZ) has also remain in the purview of the executive and the legislature.
seen disagreement between centre and state. The concept It has also been felt that specialized courts have moved
of eco sensitive zones came into force with the MoEF environmental issues away from being public affairs. Within
order to states to demarcate eco sensitive areas around the judiciary, the operationality of the National Green
national parks and wildlife sanctuaries and in case of Tribunal (NGT) has also had certain loopholes. This creates
inaction, 10 kilometres around the protected areas would top heavy structures of decision making and depreciates
be delineated as ESZ. States on the other hand wanting the powers of the NGT and lower courts to consider
to exploit resources in these areas deemed ecologically environmental issues as seen in the appeals to the Supreme
sensitive were reluctant to demarcate these areas. In the Court against several mining bans directed by the NGT.
last one year that about 200 ESZ have been approved and The NGT model of a centralized and specialized court for
have been notified for consultation after a long drawn environmental issues also faces geographical limitations
process. due to inaccessibility for a majority of people which was
The institutional arrangements between state and the mainstay of the 24 high courts across the country
federal institutions have not been able to facilitate the addressing these cases before. The NGT has decided on 35
outcomes in favour of environmental protection, and the cases in 2011, 91 cases in 2012 and 154 cases in 2013 and
opposite has resulted over the years. Putting aside the some of them have been landmark decisions. But, as stated
lists for central, state and concurrent subjects, there is above, it has undermined the judicial capability to deal with
environmental and social justice issues at the grassroots
level (Raj, 2014).
15
