In this landmark order, the Court accentuates the environmental rule of law and principles of sustainable development and lambasts officials of the State who abdicated their duty of protecting forests
By Prof Upendra Baxi
On April 18, 2024, Justice MM Sundresh (who wrote the opinion) and Justice SVN Batti of the Supreme Court of India, (SCI) in a 59-paragraph judgment in The State of Telangana vs Mohd. Abdul Qasim (DIED) PER LRS. crafted a disquisition that should be widely read. It should be on the work desk of the prime minister, every chief minister, all High Court and district court justices and all key officials in government. The judgment should also find a pride of place on the work desk of all leaders of the Bar, judicial academies, law academics, eco-activists and media managers.
It accentuates the values animating constitutional conceptions of development, environmental rule of law, principles of “sustainable development” and environmental governance. It deserves to be studied by all those who pursue “development”, mindless of “biocentric” policies. Rarely does the summit court put all its prior decisions in one simple overarching framework. Future generations will owe a high debt of gratitude to these two distinguished jurists for their indefatigable normative labours.
The decision ends with recalling the words of UNEP, Global Judicial Handbook on Environmental Constitutionalism (3rd Edn., 2019, p. 7): “Courts matter. They are essential to the rule of law. Without courts, laws can be disregarded, executive officials left unchecked, and people left without recourse. And the environment and the human connection to it can suffer. Judges stand in the breach.”
But the beginning of the judicial discourse is no less crucial. It quotes the statement made by the Tribal Chief Seattle, way back in 1854, in his letter to George Washington, the first president of the United States of America, who offered to buy their land. The letter is “a pearl of wisdom not understood” by the “ignorant, educated modern mind”. He writes: “Every part of the earth is sacred to my people. Every shining pine needle, every sandy shore, every mist in the dark woods, every meadow, every humming insect. All are holy in the memory and experience of my people.”
The terms “holy” and “sacred” speak to us of the great chain of being, that deep ecology beckons and judicial duties summon. These are terms of worship and acts of applied spirituality, which herald the virtues of ancient civilizations that regard industrial civilisation in a univocal modernity as mindless environmental destruction everywhere.
Not being aware of the Chief’s poignant words, my contribution to anti-dam movements was to maintain, in a kindred way, that displaced persons do not want compensation or rehabilitation but “a running brook for running brook, and equivalent sunrise and sunset, and a groove of tress for the same grove, when you dispossess me of my habitat”. And I have further maintained that this is a collective right of all project affected peoples, a right to a lifestyle under Article 21, rights to liberty and life. To accentuate such rights, far from being anti-developmental, is the very name of the struggle for a just and decent society under the rubric of just sustainability.
It is this logical message that suffuses the decision, which takes an extraordinary walkabout of recent Indian environment jurisprudence. In slender but significant ways, it takes us to landmarks of environmental protection thematics. First, the Court silhouettes the constitutional approach, taking Article 48A (a Directive Principle of State Policy) and Article 51A(g), casting a fundamental duty upon a citizen to protect and improve the natural environment including forests, lakes, rivers, and wildlife and to have compassion for fellow living creatures. A “forest”, says the Court, should be understood “qua a forest… in light of Articles 14, 19 and 21 of the Constitution”. It is so because these provisions “represent the collective conscience of the Constitution”. Accordingly, if “the continued existence and protection of forests is in the interest of humanity, various species and nature, then there can be no other interpretation than to read the constitutional ethos into these provisions” (Para 25, citing SCI precedents of 1996 and 2000).
Second, the SCI elaborates the conceptions of environment and equity for “the vulnerable sections of the society”, those “most affected by the depletion of forests, considering the fact that the more affluent sections of society have better access to resources as compared to them”. Therefore, “the protection of forests is in the interest of mankind, even assuming that the other factors can be ignored” (Para 30, invoking a 2022 SCI decision).
Third, the Court states: “There is a crying need for a change in our approach. Man being an enlightened species, is expected to act as a trustee of the Earth. It is his duty to ensure the preservation of the ecosystem and to continuously endeavor towards the protection of air, water and land” and this change can best be described as a transition from “anthropocentric” to “biocentric”, stressing that “is not his right to destroy the habitat of other species but his duty to protect them from further peril” (Para 31, citing a 2022 SCI precedent).
Fourth, the Court endorses Godavarman Thirumulpad vs Union of India, (2006) 1 SCC 1, to the effect that forest “sustainability is an integral part of forest management and policy that also has a unique dominating feature and calls for forest owners and society to make a commitment to manage forests for future generations” (Para 32).
It further adds: “Destroying forests would lead to the depletion and destruction of our life source. It would lead to extreme droughts, rainfall would become scarce and even if it pours, there would not be any means for its natural storage. The concept of forests acting as a major sink of carbon dioxide must be “appreciated and encouraged”. Destruction of forests also affects pollination and would ultimately impact the food chain long-term (50 years or longer) commitment to manage forests for future generations” (Para 34).
Fifth, the Court discusses in some depth the right to development and concepts and mechanisms for carbon trading as particularly apt for forest preservation.
Only a misguided analyst will want to characterise this judicial discourse and dismiss it as mere obiterdicta because these observations are internally and intimately related to the discussion and decision on the issue. The SCI finds a “classic case where the officials of the State who are expected to protect and preserve the forests in discharge of their public duties clearly abdicated their role” and wonders aloud “as to how the High Court could interfere by placing reliance upon evidence produced after the decree, at the instance of a party which succeeded along with the contesting defendant, particularly in the light of the finding that the land is forest land which has become part of reserved forest” (Para 54).
Accordingly, while allowing the appeal, the SCI considered “it appropriate to impose cost of Rs 5,00,000 on each appellant and respondent to be paid to the National Legal Services Authority (NALSA) within two months from the date of this judgment (Para 59).
However, one may disagree with the minimalistic fine amount and urge courts to consider imposition of criminal sanctions of long imprisonment for the abuse of the legal process and power, leading to de-reservation of reserved forest, and for criminalising ecocide.
Indeed, the time has come, some may even say it is long overdue, to consider models of deterrence, both restorative and retributive, for crimes against the environment and to act decisively (in this land of Bhopal and endosulfan eco-catastrophes) against multinational corporate and State officials’ impunity for ecocide.
—The author is an internationally-renowned law scholar, an acclaimed teacher and a well-known writer