Protecting the environment is neither anti-poor, nor anti-development; permitting regularisation is both.
The only reason our Congress-led coalition government, fondly named UPA-II like some yet to be test-fired rocket missile, hasn’t collapsed is because its opponents are in such complete disarray. What UPA-II offers is a party that is, with the sole exception of its in-house hyperbolic serial interrupter Manish Tewari, either preternaturally reticent on almost every issue of consequence or given to mouthing platitudes which do not translate into practice. It claims to be solidly against corruption. Our Queen Mum says our moral universe is shrinking. How would she know?
In the most perverse ways, our politicians’ cavalier approach to the law sometimes does us a favour. Years ago, Kamal Nath attempted an enterprise as dazzling in its imagination as in its complete disregard for every rule in the book. Need a motel near Manali? The River Beas in the way? No problem. Just divert it, and take the river out of the equation. This reminds me of the mama-bhanja dialogue delivered with such delicious fine nasal eloquence by Jeevan, a truly villainous villain, in that determinedly C-grade epic Hindi movie Dharam-Veer, featuring Dharmendra in a leather frock and Jeetendra dressed like a cross between Elvis Presley and Liberace: jab mama nahin rahega toh bhanja kahan se ayega?
While Dharam-Veer was a box-office hit, Kamal Nath’s endeavour was an equally spectacular failure, receiving a massive thumping from the Supreme Court1 which enunciated of a cardinal principle of environmental law: the doctrine of ‘public trust’, a principle that makes those we put in power the custodians of our environment, holding it in trust for all citizens, and charged with the duty of preserving it; a doctrine that also has its roots in our Constitution. That doctrine is now solidly part our law. Yet, every politician pretends it doesn’t exist.
And now the same Kamal Nath is put in charge of urban development. So much for our moral gyroscope.
A week ago, my friend Shyam Divan wrote an article in the Times of India’s Green Cover weekly section, suggesting a constitutional amendment to create a new constitutional authority he called the Environmental Protector of India, again building on the public trust doctrine. For any number of reasons, a suggestion from Shyam is not one we should take lightly and, in a brief exchange that followed, he explained that he saw no other way of safeguarding our environment over the next thirty years. But the calibre of the post’s incumbent is another matter, and there again we encounter the Godzilla of corruption.
Consider the implications of this suggestion, and consider them in the context of the recent open letter by 14 prominent citizens. The G14, as it was immediately christened (a somewhat unfortunate moniker; what is the G supposed to stand for? Group? Good-guys?), complained about the lack of governance and increasing corruption in the country. For the most part, their letter is unexceptionable and voices what we all feel. The one puzzling part of that letter is para 4:
4. It is widely acknowledged that the benefits of growth are not reaching the poor and marginalised sections adequately due to impediments to economic development. This is because of some critical issues like ENVIRONMENTAL CONCERNS and differences in perspectives between central and state governments.
How should we read this? The inclusion in the group of Justice Srikrishna, Justice Variava and some others suggests that this is little more than an expression of the view that growth and development demand far less uncertainty and a great deal more consistency in environmental and commercial policy. But there are others in that group who have at different times taken the position that environmental policy is actually a hindrance to development. That, as I said recently, is rank nonsense.
The panellists at a recent NDTV discussion about environmental law enforcement, development and the effect of the former on the latter — specifically, Jairam Ramesh’s recent orders against Adarsh and the Lavasa issue — included Suhel Seth, wearing a cheerfully tousle-haired schoolboy look and mincing no words. Seth argued that what we need is demonstrable justice, not posturing; that environmental policy should be clearly stated and implemented quickly, not belatedly; and questioned our penchant for ‘regularisation’. Seth was right on all counts, though we may debtate an appropriate form of demonstrable justice and what should be a reasonable time for implementation. On regularisation there can be no dispute.
Regularisation is the greatest invention after the wheel. It is also pure alchemy: it allows you to turn the lead of illegality into the gold of legality, usually by paying a fine. This, as Mr Seth said, means that anyone can plonk a structure on the grounds of Rashtrapati Bhavan and then demand that it be ‘regularised’. But regularisation postulates an initial illegality; and courts have repeatedly said that an illegality is incurable.2 The very nature of regularisation means that it can never be part of any lawful policy. That immediately means that it is applied entirely arbitrarily: jhuggies and hutments and slums are not regularised. Bungalows at Sainik Farms and Khandala and Alibag are.
Mr Ramesh is not being bloody-minded when he says is that you cannot ignore environmental laws, which exist for a reason, and expect to get away with it. Yes, there are problems with some of the cases he has on hand, chiefly that his recent actions seem much delayed. And, while he is flexing legal muscle for the environment, he is also confronted with a now entrenched regime that permits regularisation. What is the alternative? To allow infractions is to send out precisely the wrong signal.
On the same TV show, Tavleen Singh bemoaned Jairam Ramesh’s action, repeating that hackneyed anthem “Who will invest in the country?”, a shallow, vapid line especially popular with the glorified money-lenders who pass off as captains of industry. Who will invest in India? Anybody who knows that they can’t monkey around with environmental laws. Anybody who knows they won’t get away with fake environmental impact assessments. Everybody who realizes they can’t use the Dabhol-Enron model of spending money on “educating” our politicians. Anybody and everybody who understands clearly that they can’t go ahead and do what they like in defiance of the law and without any permission. That’s who. Corporate India’s whingeing about environmental law enforcement assumes that corporates are lily-white and corruption-free. Indeed they are not; and while there is a supply of corruption, there is equally a demand. Where does that demand come from? Ms Singh’s complaint is actually an argument for increasing lawlessness. As a price for so-called development, that is unacceptably high. Do we want investment coming from people whose whose methods include finding ways to defraud the law? We have enough examples of fudged EIAs. We don’t need more. History shows that societies ignore environmental concerns at their peril.
To say that this is “anti-development” or “anti-poor” is the purest bunk. If your definition of growth is putting up oversized west-facing glass-fronted buildings (and simultaneously claiming them to be ‘green’ because they need no heating thanks to being heat traps, never mind that this isn’t Scandinavia when we last checked), then yes, there is a problem. Mining that destroys forests in Sindhudurg without any form of payback to the environment, and proceeds on the assumption that the environment is a freebie, is no development at all. The environmental price of this kind of development is never paid; but its cost is paid by future generations.
Yes, we need power. Nobody has an ideological problem with electricity. Do we need a massive coal-fired plant on the Ratnagiri coast? Or a nuclear plant at Jaitapur? Do those plants need to be in those locations? Can they not be as useful elsewhere? What is the real cost of every unit of electricity if you also factor in the environmental degradation these projects cause? Is this sustainable over the next three decades? Our policies, on paper among the strongest anywhere, do recognize the intrinsic value to the economy, and to development and growth, of environmental protection but do nothing to provide rewards or incentives to those who do keep our forests intact and our rivers free of sewage. That is one change we do need to make.
There is nothing wrong with attempting a strong implementation of environmental law, and it is absurd to complain about a lack of governance (which means a failure to follow the law), corruption (a defiance of the law) and at the same time to protest that when a law is being implemented, it is anti-development and anti-poor.
Look more closely at what Mr Ramesh is doing. His most recent statement, on the bauxite project in Orissa, is that he is still willing to reconsider it if certain environmental issues are addressed. There can be no possible objection to this approach if you leave aside for a moment the inherent arrogance in stating that unless the bauxite operation is allowed, those poor, wretched ‘tribals’ will be condemned forever to their poor, wretched lives — suggesting that they are, somehow, second-class citizens, not entitled to clean water, education and health care unless they agree to a quid pro quo and give up what is most precious to them. What kind of development is it that tells you that your right to live decently comes at a price others do not have to pay?
Poverty is an environmental issue, not or at least not only an economic issue. Laxity in environmental enforcement least affects the rich, which is why they always speak of a loss to the “national exchequer”. The poor are hit at a personal level. It is their own lives, homes and livelihoods that are threatened by environmental degradation. That is a key differentiation and one we too often refuse to make.
Poor dumb mouths: Shakespeare’s striking phrase, though in an entirely different context, captures in three simple words the essence of our environmental problems: poverty, voiceless and hunger. The price of poverty is voicelessness. It is the poor who are most in need of the certainty of law and the steady hand of justice.
M. C. Mehta v. Kamal Nath, (1997) 1 SCC 388, dated 13 December 1996. The Supreme Court imposed damages and also ordered the issue of a notice to Span Motel to show cause why it should not be fined. The petition before the Supreme Court was based on a newsreport in the Indian Express of 25 February 1996, headlined “Kamal Nath dares the mighty Beas to keep his dreams afloat”. The article included this passage, reproduced in the Supreme Court judgement: “The club represents Kamal Nath’s dream of having a house on the bank of the Beas in the shadow of the snow-capped Zanskar ranges. The club was built after encroaching upon 27.12 bighas of land, including substantial forest land, in 1990. The land was later regularised and leased out to the company on April 11, 1994. The regularisation was done when Mr. Kamal Nath was Minister of environment and Forests. …. The swollen Beas changed its course and engulfed the Span club and the adjoining lawns, washing it away. For almost five months now, the Span Resorts management has been moving bulldozers and earth-movers to turn the course of the Beas for a second time.” On 19 December 1996, the Supreme Court said its previous order of a few days before (13 December) had become final on facts and could not be re-opened. In 2000, while withdrawing the notice regarding the fine, the Supreme Court issued a notice to Span Motels to show cause why, in addition to damages already ordered, further exemplary damaged should not be recovered, saying that this kind of environmental damage was a civil wrong against society in general. (2000) 6 SCC 213. In 2002, the Motel sought to be relieved of the exemplary damages liability, claiming that it was blameless. The Supreme Court rejected both pleas. (2002) 3 SCC 653 ↩
Sri K. Ramadas Shenoy v The Chief Officers, Town Municipal Council, Udipi & Ors, (1974) 2 SCC 506. The decision uses these exact words: “illegality is incurable”. This proposition continues to hold the field, and has been followed in a long catena of later decisions. It also forms the basis of the so-called “FSI fraud” cases of the early 1980’s in the Bombay High Court which led to the demolition of the top eight floors of Pratibha Building — the shell still stands — and Arihant, near Mahalaxmi, which was demolished entirely. In both Pratibha and Arihant, the argument for ‘regularisation’ was expressly repelled. ↩
Who's Afraid Of Jairam Ramesh?
The only reason our Congress-led coalition government, fondly named UPA-II like some yet to be test-fired rocket missile, hasn't collapsed is because its opponents are in such complete disarray. What UPA-II offers is a party that is, with the sole exception of its in-house hyperbolic serial interrupter Manish Tewari, either preternaturally reticent on almost every issue of consequence or given to mouthing platitudes which do not translate into practice. It claims to be solidly against corruption. Our Queen Mum says our [moral universe is shrinking]. How would she know?
: http://www.ndtv.com/article/india/india-s-moral-universe-is-shrinking-says-sonia-gandhi-67417 "'India's moral universe is shrinking, says Sonia Gandhi', NDTV, 19 November 2010"