A Milestone for Environmental Justice

[vc_row][vc_column][vc_column_text]Above: A relief team tries to save miners trapped inside an illegal coal mine in East Jaintia Hills/Photo: Twitter The Supreme Court has said that the treasures of nature are for all generations to come, thus stressing that the integrity of the environment is a basic human right By Prof Upendra Baxi In the hustle and bustle of the day, one abiding principle of the administration of justice tends to be overlooked. Last week, we highlighted the Supreme Court decision in Asian Resurfacing  Case (India Legal, July 22, 2019) which took giant strides in limiting stay/interim/interlocutory orders—SIIO. Although not directly concerned with the SIIO regime, the expedition in bringing this complex environmental matter to a conclusion is indeed remarkable. In Lber Laloo V All Dimasa Students Union Hasao District Committee & Ors. (the Meghalaya En. Case, hereafter referred to as MEC), decided on July 03, 2019, expedition outshined long adjudicatory delays. Various civil appeals questioning the National Green Tribunal (NGT) jurisdiction and judgment which ordered Meghalaya to put Rs 100 crore into an environmental fund for arresting further degradation of the environment were filed between 2018 and 2019. The NGT decided on the matter on August 31, 2018, and its origins lay in a suo motu petition by the Gauhati High Court based on a news item. The item on July 06, 2012, said that at least 30 labourers were trapped inside a coalmine in the district of South Garo hills and 15 of them had died. This matter was referred to the NGT on December 10, 2012. Even though it took nearly six years to settle, the overall judicial expedition was remarkable, for at the heart of the litigation was the jurisdiction of the NGT to explore such matters. The fact that suo motu jurisdiction was assumed by the High Court and the NGT passed such remarkable directions is worthy of popular understanding and acclaim. At issue was the unregulated practice of “rat hole mining” (by which the area was flooded), said to be widespread in Meghalaya. THE JURISDICTIONAL TANGLE The high costs and profits of coal mining ensured that the concerned companies would challenge the jurisdiction of the NGT, a threshold plea that would not have been quite cogently made in a suo motu proceeding in a High Court. It is, therefore, not a matter of surprise that the Western Coal Miners and Exporters Association made some submissions. But an application was also allowed by two autonomous Khasi hill councils urging that as constitutional bodies, they were entitled to a share of royalties in mining agreements. As constitutional bodies, the directive principles and fundamental duties of all citizens (crystallised in Parts IV and IV-A of the Constitution) clearly stipulate some crucial obligations on all agencies of the state, other constitutional bodies and each citizen to preserve,  protect, and promote the “environment”. The Supreme Court elaborately considered the legal objections concerning the jurisdiction of the NGT but held that “the submission on behalf of the State that the Tribunal has no jurisdiction is not expected from the State Government who is under constitutional obligation to ensure clean environment to all its citizens. In cases pertaining to environmental matter the State has to act as facilitator and not as obstructionist”. This is a wise counsel—the very nature of the Constitution nudges us all to the path of walking the Constitution-talk. Equally wise is the ruling that “in statutory provisions there is no kind of exception” that says that “when owner himself wants to win the minerals he does not require any mining lease”. The submission, that “with regard to minerals which vest in a private person no mining lease is required” frustrates “the whole object of the Union by which it declared to have taken under its control regulation of mines and development of minerals”. With this, the decks were cleared to handle other large issues confronting the court and other decision-makers. Notable is the direction to the commissioner and secretary of the state in the Department of Mining and Geology along with the officers of Coal India Ltd to “deliberate with the Katakey committee to finalise a comprehensive plan for transportation and handing over of the coal to Coal India Ltd for disposal/auction as per rules” and “beneficial to both the owners of the mines as well as to the State of Meghalaya”. The Court left it to Coal India to decide the “venue, where they shall receive the coal” from the state and “to finalise the process of disposal and auction of the coal” and “all consequent steps regarding disposal”. PERSPECTIVES Justice Ashok Bhushan (who wrote the opinion of the Court, fully endorsed by Justice KT Joseph) created a new chapter in Indian environmental protection by setting out the perspective in the very first paragraph of the judgment. It enshrined at least three important considerations. First: “Natural resources of the country are not meant to be consumed only by the present generation of men or women of the region where natural resources are deposited.” Second, these “treasures of nature are for all generations to come and intelligent use of the entire country”. Third, the “present generation owes a duty to preserve and conserve the natural resources of the nation so that it may be used in the best interest of coming generations as well and for the country as a whole”. The phrase “sustainable development” appears nowhere here, and for the entire judicial discourse of the case. Students of international environmental law may be mystified by the lack of any references to Indian readings of that concept, but still can maintain three key components of the same concept manifest the resilience of the global precept—now further crystallised in the 2015 United Nations Sustainable Goals. However, I read this perspectival paragraph as going beyond sustainable development but rather as deploying implicitly the concept of “just sustainability”. The root idea here is that not all forms of “sustainability” may be regarded as “just” and thinking about sustainability (as I have always maintained) requires feats of “unsustainable” thoughts! The very first statement is not really to be found in the burgeoning discussion of sustainable development, hemmed in as it is by the geopolitics of the doctrine of sovereign equality of states. But within a nation, the resource-rich state may not claim exclusive entitlement to the resources it has; justice consists in a wider distribution to resource-poor regions. One hopes that this true meaning of federalism also eventually extends to global justice theorising in the Anthropocene era. Indeed, what is called cosmopolitan theories of global justice hold the view that citizenship is a morally arbitrary privilege, even feudal in nature, if it insists on availing all the resources of a country which he/she inherits; the resource-poor denizens of other countries have an equal stake in global resource distribution. Second, the Court here invokes “intelligent” rather than “sustainable” use of resources. There is no reason why intelligent use of resources may not also be eff­icient use. But the Court remains anxious, all the way through, to emphasise the qualifier “intelligent”. This would necessarily mean that not all “sustainable” uses of resources may be held “intelligent”. Thus, it is not “intelligent” to go entirely by the claims of the right to property or constitutional autonomy of the Fifth and Sixth Schedule. Integrity of environment is also a basic human right. And finally, there is growing judicial awareness about justice to future generations. Future generations refer to all future people to come. The notion here is, incidentally, strikingly different from the one prevalent in the sphere of affirmative action or compensatory discrimination, where intergenerational justice stands morally counted as a duty of justice limited only to three generations. Perhaps, taking responsibility for past injustices is a more severe moral problem than taking responsibility for all future people. In any case, even when the Court talks in terms of “people”, the judgment makes it clear that one may not do duties of environmental justice through a wholly human species bound thinking.

—The author is an internationally renowned law scholar, an acclaimed teacher and a well-known writer