Article Republished By Javier Troconis
A view of the Madras high court. Photo: Yoga Balaji/Wikimedia Commons, CC BY 3.0
- The Madurai bench of the Madras high court recently invoked the doctrine of parens patriae and declared “Mother Nature” to be a “living being”.
- Parens patriae acknowledges the state’s power to act against a bad-faith caretaker and in favour of the individual – human or non-human – in need of care.
- Neither court nor government has grasped what ‘sustainable development’ means, but have created an ‘imagined order’ around it to sustained what they need it to mean.
- The doctrine of parens patriae is a piece of this construction: it is too abstract to make a difference to day-to-day decisions concerning the environment.
There has been a sense of euphoria among those concerned about the environment, particularly over a recent judgement of the Madurai bench of the Madras high court that conferred legal rights on “Mother Nature”.
The high court invoked the doctrine of parens patriae and declared “Mother Nature” to be a “living being”. Parens patriae is Latin for “parent of the nation”. It acknowledges the state’s power to act against a bad-faith caretaker and in favour of the individual (human or non-human) in need of care. The judgement stated that “Mother Nature” should enjoy the status of a legal person, with all the corresponding rights, duties and liabilities.
Justice S. Srimathy, who authored the judgement, also said that “Mother Nature” would be accorded all the rights due by law to a person for their survival and sustenance, including their fundamental, legal and constitutional rights. Finally, the court directed the government to protect “Mother Nature in all possible ways”.
As it happens, this judgement was not pronounced in an environmental case or even a public interest litigation case, as one might expect. Instead, the matter concerned the consequences for a government employee who had been found guilty of illegally granting land rights to forest land. The employee had been forced to retire and the court was considering whether that penalty was just and proper.
The law prohibits grant of any patta on forest land, but the employee – a tahsildar – had granted it on orders from his higher officials. The high court negated these contentions and held that the “plea of the petitioner, that he had followed the orders of the higher officials, cannot be accepted since the petitioner [has] a duty to protect the forest land”. The court directed that his increments be withheld for six months, with the money ‘saved’ thus awarded to the petitioner. According to the court, “This punishment is imposed for the act … against Mother Nature”.
In the court of this verdict, the high court made some important observations on environmental jurisprudence, the state of India’s environment and policies, and actions to mitigate the impact:
In India, protected areas (like national parks and sanctuaries) notified under the Wild Life Protection Act 1972 occupy less than 5% of India’s geographical area. In fact this 5% provide ecosystem services to human survival. Rest of 95% of India’s geographical area is available for humans. In spite of the same, it is unknown why the human is so desperate to intrude in the said 5% area. The indiscriminate activities in the said 5% area are causing huge damage, which is irreversible.
The few remaining original forests – our biodiversity treasury – are being destroyed to make way for huge mines or dams or lucrative real estate projects. And we attempt to pacify the destruction with the words like ‘compensatory afforestation’ and it is like giving sanction to kill all wild tigers and replace them by farming the same population in captivity, which is absolutely against “Nature”.
Under the guise of sustainable development, the human should not destroy … nature. If sustainable development finishes off all our biodiversity and resources, then it is not sustainable development, it is sustainable destruction. The phrases like ‘sustainable development’, ‘the polluter pays’, ‘the precautionary principle’ shall not be allowed anymore.
What has been quoted above is only obiter dicta – observations with no binding value – but they are nonetheless very pertinent. If we can’t meet our economic growth aspirations with 95% of our land, what could opening up the remaining 5%, in national parks and sanctuaries, do to help? Is compensatory afforestation an answer to all ecological destruction? Can an abstract concept such as ‘sustainable development’ become licence to plunder nature?
But while the high court expressed its anguish over the manner in which “Mother Nature” has been treated, it missed the irony. Only two weeks prior, a bench of the Supreme Court refused to interfere with a decision of the Union government – to fell more than 11,000 trees in an elephant reserve adjoining the Rajaji Tiger Reserve in Uttarakhand to clear room for a highway.
The National Green Tribunal (where the project was first challenged) had earlier upheld the forest clearance granted for the project. Its reasoning was that the highway was necessary and that the project proponent had promised to undertake compensatory afforestation for double the area. The Supreme Court echoed the tribunal in its judgement.
Similarly, a month ago, a bench of the Supreme Court held that it was legal to allow post facto approvals in “exceptional matters”, thus undermining the precautionary principle – a bedrock of environmental jurisprudence in India. The outcomes in both cases were far removed from the ideals spelt out in the Madras high court’s verdict.
This said, the high court may not have been completely correct in holding that “phrases like ‘sustainable development’, ‘the polluter pays’, ‘the precautionary principle’ shall not be allowed anymore”.
Of course, it must be conceded that the comments are not out of place. A decade ago, Justice Radhakrishnan ruled in Centre for Environmental Law v. Union of India (2013) that concepts such as ‘polluter pays’ and ‘sustainable development’ are anthropocentric: they are only concerned about human welfare, to the exclusion of that of non-human species. He highlighted the need to adopt an ecocentric approach instead.
Unfortunately, environmental decisions made by the Supreme Court as well as other high courts and tribunals continue to exhibit not only an anthropocentric bias but also an overemphasis on the promises of ‘sustainable development’. Even the public trust doctrine, propounded in the famous case of M.C. Mehta v. Kamal Nath (1997) – wherein the Supreme Court stated in unequivocal terms that the state is not the owner but only a “trustee” of lakes, rivers and forests, and that these natural resources could not be the subject of private ownership – has never been followed, either in letter or spirit.
If one analysed judicial decisions on the environment in India, it will be evident that none of them reflect a true understanding of the concepts of ‘sustainable development’ and the ‘precautionary principle’. In fact, it would not be out of place to state that neither court nor government is clear as to what ‘sustainable development’ actually means.
Instead, this entity exists not as is but as the name of a “myth”, of an “imagined order”, to use the words of Yuval Noah Harari in his 2014 book Sapiens. Harari does not establish this equation himself but his description of a myth points square in the same direction. In his words, “we believe in a particular order not because it is objectively true, but believing in it enables us to cooperate effectively and force a better society”.
Here, Harari emphasises the role of courts in enforcing the resulting “imagined order”. In the last few years, various high courts – including those of Uttarakhand, Haryana and Punjab – have invoked the doctrine of parens patriae. Most of these decisions have been stayed by the Supreme Court, an understandably so.
The doctrine of parens patriae is too abstract: academics viewing nature as a juristic person may be an important step for them towards recognising the aspirations of the entities that constitute the natural universe. But it is unlikely to make a real difference in the day to day decisions concerning the environment.
Instead, doing so only adds to the list of environmental-law principles that in turn strengthen the imagined order.
Ritwick Dutta is an environmental lawyer.