‘Someone should speak on behalf of environment’

Shibani Ghosh, the author of Indian Environmental Law: Key Concepts and Principles, speaks to Down To Earth on the role judiciary plays in environment protection

By Ishan Kukreti
Last Updated: Monday 16 March 2020

Shibani Ghosh

What are the key challenges to environmental jurisprudence in India? 

Environmental court disputes in India are often complex and courts are not always well-equipped to appreciate all the factual and technical nuances. In such situations, courts need independent and high quality expert assistance. Given the time and resource constraints, this is one of the biggest challenges courts face.

Courts rely extensively on the pleadings lawyers make and the quality of these often reflects in the decisions. It is, therefore, important for lawyers to be not only well-versed with laws, but also have a good understanding of the factual circumstances on the ground. Often, this does not happen. 

In cases which involve both environmental rights and rights of environment, such as the Forest Rights Act, which right takes priority? 

It depends on the case. When the two are in conflict, courts will necessarily have to enter into a balancing exercise. However, it is important that someone speaks on behalf of the environment. Also, while defining the right to environment in a particular case, it is important to consider several factors — who is claiming the right; what is the basis for the claim; is it a justiciable right? 

Do you think judiciary has incorporated the idea of climate justice? If not, does it need to? 

The Indian judiciary is fortunately not a climate sceptic. In fact, as far back as early the 1990s there have been judgements referring to global warming. In the past decade, our courts are increasingly referring to climate change, its causes, impacts and the international negotiations.

But most cases have made passing references to these, and only some engage with the issues substantively. Climate justice is yet to enter the judicial vocabulary. Given that our judiciary has been inclined to expansively interpreting rights and duties and has created a framework of legal principles, it is likely to be engaged much more with climate issues. However, it may not happen in the immediate future as there are numerous “mainstream” environmental concerns which are more pressing. 

Is the regulatory framework in the country equipped to handle environmental challenges? 

Conflicts over natural resources are intensifying. We are sliding on almost every environmental quality indicator. There is no doubt that environmental regulation has not kept up and environmental regulatory institutions have failed. But going to courts cannot and should not be the only way to prevent environmental degradation. A judiciary that is sympathetic to environmental causes can only provide temporary solutions. Systemic, long-term solutions have to come through legislative and executive measures.

This was first published in Down To Earth's print edition (dated 1-15 March, 2020)

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