- Sakshi Aravind*
India has consistently registered a high number of environmental conflicts in the last decade. The Environmental Justice Atlas (‘EJ Atlas’) documents an ever-raising number of environment related conflicts and violence across the country, placing the nation well ahead of Brazil and Colombia on its metric. Worryingly, India also ranks fourth amongst the countries that have witnessed an escalation in the number of environmental defenders and activists murdered between the years 2015 and 2017. As an unfortunate irony, these ascents are accompanied by an abysmal fall in our environmental performance number index, ranking us 177 among 180 countries. If we look closely at the classification of environmental conflicts, most fall into resource conflicts, in the province of water or mining, affecting the poorest and the most vulnerable communities of India. While the consequences of the damage and long-term environmental degradation may have wider consequences affecting a larger population, it is incapacitating the indigenous communities of the country in an unprecedented manner. Not only are they at the short end of health and welfare consequences of environmental degradation but are also systematically erased through displacement and disenfranchisement. Unfortunately, it is only now that we are beginning to pay attention to the idea of ‘environmental justice’, however cursorily. In this piece, I engage with the broad notion of environmental justice while drawing attention to its specificities as manifest in the writings of David Schlosberg. Based on his paradigm, I then look at the state of environmental litigation in India and the extent of green tribunal’s engagement with the idea of environmental justice in order to draw out paradoxes that may encourage us to rethink the state of environmental justice in the country. The objective of the paper is to suggest that existing institutional limitations to environmental justice calls for not only for legal reform but also for an active democratic engagement with the courts, taking resistance against environmental harm from the social domain to the legal domain.
II. Iterating Environmental Justice?
The term environmental justice is dense, laden and, very often divisive. It originated in the wide-ranging social and civil rights movements in the US in the late 1970s as a coherent and substantial theoretical concept. Moreover, it reflected a radical departure in our collective understanding of justice from a purely legal concept to a socially and economically molded apparatus. Robert Bullard, Pulido, Szasz & Meuser and others mark the beginning of environmental justice scholarship in the US. Hence, the trajectory of the development of the academic conception of environmental justice overlapped with that of social movement against environmental racism in the US.
The movements foregrounded the fact that the racial and economic inequality at large in society also reflects the disproportionate burden faced by the same communities as consequences of environmental damage and pollution. Movements for environmental justice demanded that these inequities be redressed, and the economic and social costs borne by certain races or economic classes through poor environment be eliminated.
The concept of environmental justice gained momentum over the years and was transposed across nations, into different jurisdictions with elements that are specific to their social, economic, and legal necessities. Thus, we witness a multitude of definitions of environmental justice, each diverse in their framework and constituents, yet united with the dominant theme of fairness and equity for the vulnerable communities. Illustratively, countries from the Americas, such as Brazil and Colombia iterated mining conflicts involving indigenous communities and Afrodescendents as point of the conception of the environmental justice movements whereas South Africa found the inception of environmental justice as an opportunity to address racism, labour reform, democratization, and regulation of the extractive economy. While the poorer, resource rich nations produced a vibrant understanding of environmental justice, propelled by challenges faced from oppressive economic and environmental transformation, countries with deeper colonial histories showed more receptiveness towards expanding the ideas of justice in the backdrop of past and present oppression. While the theoretical evolution of the idea of environmental justice from the Global South may not be satisfactory or have any tangible effect on the state of the environment, it has been dynamic and significant.
III. Schlosberg’s Paradigm
Environmental justice is never a descriptive category. Several of the key scholars on environmental justice recognize that an expansive understanding of environmental justice is imperative for it to facilitate ‘conditions of social justice’. In fact, Schlosberg’s model of environmental justice, of distribution, recognition, and participation, embodies more socio-economic factors than mere reflections of the nature-human relationship. It demands that the idea of justice is achieved, not through a fairer distribution of environmental harm, but through eliminating such harm. In the process, one must recognize groups, such as the indigenous communities, whose relation to the environment is distinct, making them more vulnerable to environmental damage. Further, addressing justice must involve active participation by affected communities in legal and other transformative processes, with due regard for the articulation of their autonomy, politics, and ideas of justice.
In light of this framework, the evolution of environmental justice in the Global South has been an important element in the development of racial and social justice. Yet, even more critical has been the role of legal institutions in processing and presenting a homegrown understanding of environmental justice. Admittedly, some of the key jurisdictions, including India, have established specialist environmental courts and tribunals in the last three decades, and have made substantial contributions to environmental jurisprudence. Judicial understanding of environmental justice has had an undeniable role in shaping not only the literature about the concept but also the social movements around it. These multiple framings of environmental justice leave us wondering where India stands, socially and legally, in its distribution-recognition-participation metric for the indigenous communities suffering the perils of environmental destruction across the country.
India’s National Green Tribunal (‘NGT’) is not exactly the impeccable environmental court which the current environmental crises in the country demands. It is a unique creature operating with a limited mandate, as elucidated in S. 15 of the National Green Tribunal Act, 2010, empowering it to grant three forms of remedies:
Relief and compensation to victims of pollution and other environmental damage under Schedule I of the Act.
Restitution of property damaged
Restitution of the environment of area(s) damaged
In comparison to operationally independent environmental courts or specialized environmental benches of the High Court, such as those in New Zealand and Brazil, India’s NGT is barely adequate to address the extent of the environmental challenges posed. Relying on three limited provisions empowering it, the tribunal cannot hope to respond to questions of environmental justice or alert itself to the nuances of the environmental issue at hand. While the tribunal aims to provide a specialized decision-making outlet for environmental matters in the nature of civil cases, the need for a forum aspiring to the holistic management of environmental justice looms large. Unfortunately, the celebrated cases decided by the NGT, such as those imposing punitive damages and penalties, have been more suggestive of a judicial overreach than of indications of progress in environmental jurisprudence. The role of the tribunal in these instances has appeared more political and nebulous than pragmatic. Ironically, some of the high-handed decisions of the tribunal have fallen by the wayside for the want of an effective enforcement mechanism. By and large, India suffers from an acute dysfunction in environmental governance, as well as philosophies accompanied by insufficient legal apparatus to deter or remedy environmental harms.
Adivasis and Environmental Injustices
The Consequences of poorly designed environmental protection mechanisms in India have manifested however as a denial of environmental justice to a wide range of the indigenous population, the Adivasis as they are commonly known. The effects of environmental degradation have taken diverse forms, such as adverse health and economic impacts, resource conflicts, the destruction of indigenous cultural heritage and ways of life, and the impeding of indigenous autonomy. Illustratively, these injustices are manifest in resource-related conflicts, especially mining, in the tribal-dominated regions of India. The recent reports of Sakinda valley chromite mining in Odisha devastating the health and economy of the state and the iron ore mining devouring tribal heartlands in Saranda forest of Jharkhand are only a tip of the iceberg.
Mining itself is a mosaic of intersecting oppressive practices, severely jeopardizing indigenous health and welfare. While this fits into the conventional understanding of environmental justice and the distribution of injustices, our reckoning of indigenous environmental justice ought to be wider to suit domestic socio-economic and political necessities. In order to address ‘justice’, several parameters must be considered, including the revision of the metric for the identification of problems/losses, the effect on the cultural existence of the communities, the incommensurability of their losses, and the inability of economic systems to adequately compensate these losses. As aggregate national statistics on displacement are still missing, cumulatively it is estimated that, of all the tribals who make up 10% of the national population, 40% account for all the project-related displacements in India. Often, these tribal corridors have overlapped on resource-rich mining corridors, or land earmarked for mega-projects. Although notions of the rule of law and justice must not rely on the existence of statistics, these numbers only serve to magnify the extent of the vulnerability of the indigenous population. The state of environmental inequity is crying for attention to address the aspects of ‘recognition’, and ‘participation’ in the Schlosbergian framework of environmental justice.
IV. Courts and Limits of Justice
Environmental justice requires both governance and courts to be robustly complementary in addressing social and economic inequities and disintegrating ecology. Reframing environmental justice must be a structural process, occurring simultaneously within legal and governance institutions. At present, our governments are overenthusiastic to usher in investments by minimizing difficulties of clearance. Economic Compensation and the sharing of revenue with affected Adivasis are a mere ruse to disguise the lack of access to necessary judicial remedies. Unfortunately, even healthcare is increasingly privatized or airbrushed as corporate social responsibility, leaving the poor indigenous communities at the short end of the stick. The courts, which are often seen as the last bastions of justice, occupy an uncertain terrain where their endemic ideas of justice are limited to what is prescribed in the statute. In early December 2018, the NGT allowed Sterlite Industries to re-open the functioning of their plant in Tamil Nadu on an unsupported contention of denial of the principles of natural justice. The judgment sings paeans to the benefits of copper mining and the continuation of the industry will remaining strangely silent about the culpability of the establishment that continues to thrive at the cost of lives and well-being of the people. Effectively, it seems that India’s relentless pursuit of neoliberal models of governance and economic progress has allowed little opportunity to reflect on the contemporaneous state of environmental justice.
In the absence of coherent principles to guide their decisions, it is probable that neoliberal legality reinforces the capitalistic ambitions of governments. As social movements for environmental justice and ecological resilience are burgeoning elsewhere, it is vital for us to amplify the internal processes for recognizing the nature-culture relation unique to the indigenous communities. The task of designing a native indigenous environmental justice concept must be cognizant of an idea of justice that does not limit itself to recognizing palpable damage, such as, health and poverty, but extends to the less obvious, such as, erosion of indigenous identities. Moreover, recognition is conducive to fulfilling the aspect of ‘participation’, both at the stage of decision-making and in remedying the harm caused. Preserving and strengthening the ties of the indigenous population to resources and land, instead of eliminating them, has consequences not only towards reinforcing social justice but also for our collective obligation to preserve the environment.
While it is easy to lose sight of the objectives of justice by uncritically leaving it to the domain of state and legislation, real transformation in the present context is only possible if there is a holistic reframing of the idea of environmental damage, and its impact on ideas of indigenous environmental justice. India has a lot to learn from David Pellow’s argument for ‘critical environmental justice’, an idea of justice which constantly examines the entrenched power and social inequalities in institutions. There is a need for multi-scalar analysis of causes and consequences of environmental injustices, and their attendant struggles. The indigenous communities in India continue to rely on social struggles and movements to articulate their resistance against the onslaught of globalization and capitalism. It is imperative that we ease the passage of grievance from the social domain to the legal, in order to make the courts participate actively in understanding and shaping environmental justice. Equipping our courts with the idea of environmental rule of law and attuning judicial discretion with distribution-recognition-participation paradigm of indigenous environmental justice must be at the heart of India’s environmental priority list.
Admittedly, the idea of environmental justice has remained nebulous in spite of the proliferation of scholarship around it in recent decades. However, scholars such as David Schlosberg have contributed key paradigms for environmental justice in the global south, drawing elements from the socio-political movements against racial and cultural inequality. The indigenous population in India, like most others around the world, has experienced the worst of the onslaughts of neoliberal economic growth. As our climate and environmental obligations press the need to regulate and restrain resource exploitation and environmental degradation, it is time for us to rethink and redraw the boundaries of environmental justice. While we recognize the unfair distribution of the effects of environmental damage, strategies for prevention and remedy of such harms must take place simultaneously. The notion of indigenous justice requires stakeholder communities to have a significant voice in this process. Governments ought to refrain from infringing the indigenous relationships with nature while the courts must seek justice outside of violation-remedy dyad. We must remember that aspiring for wider and more robust environmental justice will reflect well on our socio-economic indicators at the same time. Only a proactive engagement with an ever-evolving idea of justice can keep India abreast with its peers in the global south and the time is now for embarking on that journey.
*Sakshi Aravind graduated as the university topper from National Law School of India University (Batch of 2014). She then read for the BCL at the University of Oxford and also holds an M.Phil from the University of Cambridge where she is currently pursuing her Ph.D.
 As of 2018, the numbers are plugged at 284. See Environmental Justice Atlas at https://ejatlas.org/country.
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 Environmental racism was an offshoot concept from Environmental justice and suggested that the People of Colour bore disproportionate brunt of environmental injustice and that the socio-economic policies, intentionally and unintentionally, aggravated the consequences of environmental harm on the basis of race.
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