We had an interesting discussion this afternoon on approaches to study environmental law. We lead into this subject from ecology and development perspective. It does not examine environmental law as an area of practice in law but as an exploration of ecological, environmental issues from the legal perspective. The difference must be noted upfront.
In a recent study on vegetable hawkers on Indian railways, we explored the lives of the hawkers and examined how railways as a public space is contested for, by the hawkers and the Indian railways as the owner of the property. While the property is state owned, the rules assert the right to property in a manner that it excludes the interest of those who earn their living by hawking goods on the trains. Right to livelihood of the hawkers in this case is trumped by the right to property of the Indian railways. The Indian Railway Act of 1987 considers hawking of goods by any person other than licensed vendors on the trains illegal. And for the kind of goods sold by the hawkers in this case have no licenses to be applied for. This becomes a complex issue due to the layers of conflicts and interests involved.
Similarly, there are many issues in which legal aspects tend to become key determinants of finding or even attempting a reasonable solution or alternative. How does one approach the problem from the legal aspect? Environmental Law, Governance and Policy in India is a fairly wide field to study. For beginners in this area finding a coherent and structured approach becomes the first hurdle. This post outlines various ways to study environmental law.
What is law?
Some questions that today’s lecture raised are the following. These are likely to become separate posts in themselves as I go exploring this subject in the coming weeks. The question in many ways is central to the understanding, interpretation and practice of law because it is in the manner that we see it, that determines how we bring it to our use. For instance, if it is a means of social engineering then the emphasis on construction, outcomes and interests (of the state?) are bound to be critical. For instance, the government of India’s position on LGBT issues. So-
- is law social engineering?
- is it a command and must be followed?
- is it a bridge to an imagined future? (this I find interesting for the way it is articulated)
Law as violence is another critical lens to explore its practice in India. What distinguishes law from other subjects is ‘violence’, says Abhayraj. This is an interesting way for the manner in which the contest of interest and space is interpreted in terms of violence. I remember reading a noted judge who considered a judge’s pronouncement too as an act of violence. It at some level affects the fate of a claimant in a manner that harms or violates his rightful interests.
Laws are derived from various aspects of human society and organization. An origin based exploration of law offers vital information about the development, progression and current practice of the law. Based on this, the ways in which environmental law can be explored are-
- Positive Law: This is about the standard ‘law in the books’ approach. It is often historical and narrative in its examination of the law under study. For instance, when the Forest Rights Act, 2006 of India is can be examined from the traditional relationships that the people dwelling in them and dependent on them have enjoyed.
- Customary Law: Traditions and customs of society are another source of law. According to Hindu customs, a man and a woman are considered married only after they take seven rounds of a holy fire (called saptapati). The Hindu Marriage Act regards this custom as mandatory under the Hindu Marriages Act. Another interesting instance is the Constitution of Equador which gives the idea of “Mother Earth” a legal validity.
- Constitutional Law: The constitution of a nation guarantees fundamental rights to its citizens. These rights are a source of law, where the law ensures that such rights are safeguarded and ensured to every citizen. Similarly, the duties of a citizen that are listed in the constitution also make are a source of law. Such laws are called constitutional laws.
- International Law: Nations do not exist in isolation. Numerous essential relationships bind them together-trade, culture, traditions etc. These constitute international law. From an environmental perspective, consider rivers which flow through many countries like Nile and Ganges. The sharing of such a water resource involves trans-boundary co-operation and mutual agreement.
- Common Law: History and legal precedence are yet another source from which law derives itself. In some cases the courts take a certain position based on an earlier judgement given by the court. This legal precedence in this case is serving as the source of law for the new judgement. Such a source pertains to common law.
Environmental law in India has been a domain of common law, says another professor who has been studying pastoralism and common property resources for over three decades. Common law is the main vehicle for most environment related judgements in India. The dominant legitimizing language earlier has been that of egalitarianism. In contemporary India, it is essential to examine the kind of environmentalism that comes through by the way of courts and their judgements. For instance, Supreme Court constructs a dam by Shiv Visvanathan illustrates this point about how the Supreme Court envisions environment and the manner in which it articulates it.
There are two other themes in environmental law in India and the numerous cases of environmental degradation that have emerged:
That of ‘intergenerational equity’. This is the core argument in a paper by Amartya Sen titled Why we should preserve the spotted owl.
Precautionary Principle– this states that in cases where a clear understanding of the consequences of undertaking an activity is unknown, then that activity must not be undertaken.
Finally, as it appears most of the cases in environmental law in India tend to regard environment as a ‘resource’ and the arguments lean towards an instrumental utility of environment. Amartya Sen argues that environment need not be saved only because they are essential today or in the future but because we might also want to leave the freedom of experience and quality of environment to the next generation, as that which we are enjoying. This to me appears a powerful idea, but how do the courts reason this out in the wake of tremendous development challenges that India faces?