The Middle Path to Development: Lessons from Bhutan’s environment policy

Paro valley as seen from Taktsang Monastery, Bhutan

Paro valley as seen from Taktsang Monastery, Bhutan

If there is a place which can make a traveler feel intimate with it in the shortest time since her arrival, Paro would be it. A gushing river of clear water and a fort marks the entrance to the town. The air is an invitation to inhale deep and a reminder that this is not usual for a traveler from any other part of the world – to breathe deep! Two main thoroughfares encompass the town- its houses, shops, parks and public spaces. Sitting on a ledge at the Taktsang Monastery waiting for the monastery to re-open after lunch break, a chance conversation with an officer of Bhutan’s Forest Services served as the early hints of ‘the middle path’. The place couldn’t have been any more momentous. The ‘middle path’ in Buddhism is described as the path of moderation. To Buddhists, it signifies a path of wisdom which strikes a balance between the two extremes of self-indulgence and self-mortification. The Middle Path is also how the environmental policy of Bhutan articulates the way forward.
High in these mountains of Eastern Himalayas, the remarkability lies in the relationship between the people and environment. Does it hit the sweet spot of ‘sustainability’? Not quite. Yet, there is something of great value that the Royal Kingdom of Bhutan offers in thinking about the environment. The National Environment Commission of Bhutan was born in this town after the 1990 Paro Workshop on Environment and Sustainable Development. The NEC’s responsibility was to draw up a ‘national strategy to ensure that environmental concerns become an integral part of the development agenda’. The ultimate goal of the National Environment Strategy (NES), a report of the Commission explains, is to ‘minimise or mitigate the impacts that are likely to result from the development process’. This is where Bhutan’s remarkability lies. The NES, which is a policy document, articulates, with remarkable honesty, the kind of challenge the country is likely to face in the future.
The following quotes from the NES document of 1998 illustrate the environmental potential of a political system. Formally, this system is a constitutional monarchy currently, although at the time NES document of 1998 was written Bhutan was a monarchy. The democratic reforms are of very recent origin. The members of the National Assembly have mandated the country to maintain a forest cover of more than 60% (National Forest Policy, 1974) at all times. Forest cover stands at more than 72.5% of the country. The document on NES, 1998 states,

The Middle Path-National Environment Strategy for Bhutan aims to highlight issues, potential problems and constraints, and choices that our country has to make in order to ensure the conservation of our natural resources while pursuing economic development.

There is a certain kind of policy thinking that this statement reflects – one in which problems are articulated and acknowledged in the barest form of honesty. Problem recognition in policy making is regarded as the first step towards effective policy making. Further, examine the questions that the NES, 1998 posits to itself and seeks to remedy,

Can we adopt modern development while still maintaining our traditional values?
Can we accept the need to develop industries, social infrastructure and markets, while still recognising that development is not material development alone, but the enhancement of knowledge, spiritual and cultural development? Can we maintain our traditional values and sustainable livelihoods in a changing global environment? Can we raise the living standards of the present population without compromising the country’s cultural integrity, historical heritage or the quality of life for future generations?

These questions reflect a searching intent in the policy thinking of Bhutan’s political system. Another instance is use of the word ‘spiritual’ in a policy document which stands at odds with the positivist and objective traditions of policy science. This is the variety of progressiveness which is yet to be seen as a norm in policy thinking. The intent of this piece has been to highlight how political systems do hold potential for environmental consciousness and factor in sustainability in their development process. Does Bhutan have these answers? Why don’t we see political contestations in Bhutan over different interests as one might see in India? Ethnic homogeneity in the Bhutanese society seems to be advantageous on this front. In addition to it, democracy is nascent in Bhutan and this perhaps explains the absence of dissenting voices.

In 2012, Bhutan announced its decision to become a member of the International Union for Conservation of Nature. The country has been known as a model for proactive conservation initiatives and has received international acclaim for its commitment to its biodiversity. This is a testimony to the fact that Bhutan’s policy thinking is in a direction that other countries can take a leaf from.

Studying Environmental Law in India

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-

  1. 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.
  2. 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.
  3. 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.
  4. 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.
  5. 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?