By Mr. Utkarsh Jain*
Continuing and Intended Destruction of the Environment During the Corona Virus Pandemic in India
We are presently witnessing yet another cycle of the large scale and pre-meditated destruction of the environment by the Indian nation state. Across, the length and breadth of India, the government is unilaterally taking decisions which will have a permanent and long lasting impact on the biosphere and communities, which for the longest time, have lived in healthy co-existence with it.
In the western part of the nation, in the state of Goa, we see the Standing Committee[i] of the National Board for Wildlife (the apex government body of ‘experts’ and ‘bureaucrats’ mandated by legislation[ii] to promote the conservation and development of wildlife and forests in India), recommend[iii] the construction of a double track railway line (upgrade from a single line), electricity transmission line and highway through one of the most pristine ecological areas in the world[iv]. The meeting in which these decisions, and various others (some of them involving vast areas of pristine forest land[v]) were taken was conducted virtually (owing to the coronavirus pandemic) and in extreme haste, within a span of hours. It is also pertinent to add that the board is not a body which is elected by popular mandate, but constituted by the existing government[vi].
Similarly, in the southern part of the country, in the State of Kerala, we see the state government recently provide consent (technically known as a No Objection Certificate) to the state electricity board for the 163-megawatt (MW) Athirappally Hydro Electric Project (AHEP), home to not only one of the oldest tribal communities of India called Kadars[vii] but also extremely rich biodiversity (also a part of the western ghats) and aquatic ecosystems (including the Chalkudy river and Athirappally waterfalls)[viii]. The state of Kerala, having only recently emerged from one of the most devastating floods in its history, has yet again failed to take into consideration the severe consequences that the construction of such a dam would have on the natural river flood channels.
As of July, 2020, there has been a massive inferno raging in the Baghjan Oil Field in the extremely biodiverse eastern Indian city of Baghjan in the state of Assam[ix]. The inferno, leaping 50 feet above ground level, is a result of the eruption of highly flammable and compressed natural gas from one of its producing wells. Condensate derived from the contact between natural gas and the atmosphere has begun to settle on all surfaces in a 5 kilometer radius, posing additional public health threats. The heat being produced by the inferno is so intense, that it poses a lethal risk to life anywhere within a 1.5 kilometer radius hence requiring the evacuation of thousands of people from the local community, not to mention the large scale destruction of their crops and homes[x]. In addition, the site of the inferno is in the immediate vicinity of the Maguri Motapung Beel, a large wetland, and the Dibru-Saikhowa National Park (DSNP), home to the IUCN red listed[xi] gangetic dolphin, and the feral horse, as well as various other species and ecosystems.
This is the reality of environmental destruction that is currently taking place in India with thousands of other instances forming a huge iceberg that is being shrouded by the global narrative that the coronavirus has led to a vast improvement in the environment. The cases of environmental disasters highlighted above, all implicate, and indeed deeply impact local communities consisting of thousands of families that depend on the local biodiversity for their livelihood.
The Nature of Intervention in Response to these Environmental Disasters has been Litigious, Deferential Towards the Executive and Elitist
There is of course, a comprehensive and all encompassing response warranted to such an environmental disaster and yet, the response is often dominated by litigation centric narratives built around the ‘failure of the government to take adequate precautionary measures’, centering the argument around acts and omissions of the government, within the broader mandate of the environmental legislation of the nation. Although the response to this new wave of disasters is yet to be fully documented, previous cycles of interventions have largely been litigation centric, with huge reliance being placed on the judiciary as the final harbinger of hope, amidst a corrupt executive wing. For example, we have seen litigation cycles commence in response to pollution and degradation in the Deepor Beel wetlands[xii], also in the state of Assam (a wetland of international importance, also called a ramsar site), proposed construction of a civilian airport[xiii] on the Mopa plateau of Goa to name a few. There is no doubt that these cycles, pursued through the constitutional and expert courts/tribunals of the nation have brought about empowering judicial orders. However, in each of these orders, the judiciary, consisting of judges born in the mid 20th century, has erred on the side of relying on the executive wing of the government, to take the call as to whether and to what extent these areas need to be protected. For example, in response to litigation over the rapidly shrinking Deepor Beel wetlands, the apex environmental tribunal of India, called the National Green Tribunal, manned by retired judges and bureaucrats, directed the government to declare the entire area around the wetlands as a ‘eco-sensitive zone’ (using its powers to promulgate delegated legislation under the Environment Protection Act of 1986)[xiv]. However, recent news reports suggest the dumping of about 500 metric tons of solid waste in the wetlands each day[xv]. In the case of the proposed airport at Mopa, Goa, the Supreme Court of India directed that the government to rethink the entire project[xvi]. The government decided to re-approve the airport with a few cosmetic additions to the environmental conditions mandated for the project to continue[xvii]. The Supreme Court later accepted the cosmetic changes made and allowed the airport project to go through[xviii]. Such examples of the judiciary reposing faith in the government and its bona fides, are abound across India, enough to fill entire volumes and treatises.
It is not just in India that the judiciary has been deferential to the government in cases where the destruction of the environment and climate change has been involved. In the United States, the U.S court of appeals for the ninth circuit, in an order passed in the case of Juliana v. United States[xix], refused to intervene in issues related to government inaction when it came to incorporating climate change considerations in its decision making process, opining, among various reasons, that it simply did not have the power to address such a political question[xx], which was properly in the domain of the executive to address. Similar examples are abound in other countries such as the United Kingdom where the Court of Appeals (civil division) directed the state to rethink the decision to construct a third runway on the Heathrow airport taking various considerations including climate impacts into account[xxi].
That a lot of the litigation and environmental activism is being driven by elite[xxii], upper caste and class, dominantly male, privileged members of the Indian civil society, lawyer community, political class, as well as the judiciary, keeps the mainstream environmental advocacy movement in India at a comfortable arms length distance from the communities of tribals, children and vulnerable constituencies of people, that actually face the most brunt of environmental destruction. It is these vulnerable groups that approach lawyers, often through intermediaries that are privileged enough to navigate through the urban-rural divide, in their often well appointed, teak wood chambers, and not vice versa, with lawyers going to the field and being a part of community struggles. This is accompanied by, as mentioned, the broad legalization and judicialization of how a community imagines, and contends with the issue of degradation of the environment. Any strategy to curb degradation often ends up in the filing of litigation in public interest rather than a concerted attempt to politically engage with the political executive wing[xxiii]. There seems to be an inherent behavioral pattern among the Indian environmentalist corpus, of being elite and indifferent beyond the reaches of the law and into other forms of knowledge, and places other than metropolitan cities.
It would be important to mention that these environmental movements are happening at a time when the Indian Government has resolved to dilute and do away with fundamental legal protections and services meant for the benefit of these communities. For example, the government proposed to amend the Environmental Impact Assessment Notification, 2006, in such a way that various categories of projects would be removed from the purview of public consultation with communities[xxiv]. In other news, the government has also relentlessly been diluting the Right to Information Act, 2005, to make the information commissions responsible for disseminating information to the citizenry far less independent than before[xxv].
Therefore we see a dwindling engagement between communities and the state, when it comes to key decisions impacting the environment, in addition to a lack of wholesome engagement between lawyers and communities. But what happens when lawyers do decide to help communities?
The Existing Manner in which Legal Services are Imagined is Increasingly Individualistic
A considerable amount of environmental thought was being published at the time when lawyers of my generation were in law school, fresh graduates or about to enter law school, with respect to pushing the envelope when it came to imagining environmental law and environmental lawyering[xxvi].
In part, this literature reflects on how environmental law can become more holistic and prepared to deal with increasingly complex and changing conditions of the environment. In this sense, we see themes where there has been a nudge from law professors to transition from a regulatory penal to multi-modal incentive based, blame to mature reflection, individualistic to community centric and elitist to egalitarian. Of particular interest is the way in which legal services and legal aid has been imagined by lawyers across the world. Even when lawyers decide to enter into public interest work, the interaction is between a lawyer and a ‘client’, with the lawyer playing the dominant role of advisor and planner, not using the opportunity to learn from the experience of people who are coming from the real fight on the ground. A client, coming from a vulnerable background brings her case to a lawyer and is then represented through the legal epistemic lens, rendering her voice as secondary. In response to these relations between lawyer and individual client, laced with power and privilege, many professors have done groundbreaking, revolutionary and dare I say, militant work in making the profession more egalitarian. It is the work[xxvii] of professors such as Upendra Baxi, Gary Bellow, Gerald Lopez, Lucie White, Ascanio Piomelli, Luise Trubek, Raymond Brescia, J.B Ruhl, Michael Diamond, Scott Cummings, and many, many others that established a broader paradigm within which to view lawyering, as a tool towards political ends aimed at greater emancipation of those that are vulnerable. A common theme that runs through the work of these law professors has been shifting the discourse of lawyering from individualistic to community based. As Prof. Piomelli has succinctly mentioned, various academics have called this new breed of lawyering and lawyers by different names, such as ‘community lawyering, critical lawyering, law and organizing, mobilization lawyering, the new poverty law, political lawyering, rebellious lawyering, and reconstructive poverty law[xxviii]’. This kind of lawyering involves a commitment to a larger movement and struggle steered by communities that find themselves at the forefront of environmental disasters in such a way so as to act within the bounds of the law. The role of the lawyer would be more than arguing in court and settling, and extend to working with communities and explaining the applicable provisions of the law to them in simple language. As explained by Prof. Cummings most recently:
‘movement lawyering is the mobilization of law through deliberately planned and interconnected advocacy strategies, inside and outside of formal law-making spaces, by lawyers who are accountable to politically marginalized constituencies to build the power of those constituencies to produce and sustain democratic social change goals that they define[xxix].’
The foundational justification of community lawyering from within the legal academy however comes from Prof. Gary Bellow, who argued that lawyering is inherently political:
‘Yet, the practice of law always involves exercising power. Exercising power always involves systemic consequences, even if the systemic impact is a product of what appear to be unrelated cases pursued individually over time. Lawyers influence and shape the practices and institutions in which they work, if only to reinforce and legitimate them[xxx].’
For Bellow, any lawyer engaging in community interest needs to understand the ways in which a lawyer exercises power and is indeed deeply ingrained within the existing social-political atmosphere which renders certain communities disadvantaged. To this end, a lawyer and community interaction needs to be balanced, ensuring that the former does not begin influencing the interests of the latter because of her privileged position.
Another way in which community lawyering has been described is ‘critical lawyering’, which presents a different vision of advocacy meant to aid the socially disadvantaged through the rethinking of the relationship between legal work and political mobilization. More recently, there has been an adoption of the concept of community lawyering within the Indian environmental legal discourse[xxxi] as well as in practice in various developing countries such as Kenya and Liberia. It has been argued that India provides for a special example since community life is far more important than individualistic living therein[xxxii]. There has been a movement towards not only community centric lawyering but also for the training of community members in basic legal skills or community paralegals. The most contemporary advocate of this strategy has been Vivek Maru, who has suggested that community paralegals are uniquely positioned to empower, use multiple methods such as advocacy, education and mediation, be cost effective and able to scale their operations such that the benefit to communities is amplified. Unlike lawyers, who need to be approached for a dispute, paralegals can take proactive measures (monitoring) on the field and identify issues in a way that lawyers cannot[xxxiii].
However, as it turns out, one does not need to look as far as the United States to find justifications for community lawyering. Part II of this piece would begin an inquiry into the constitutional principle of ‘fraternity’ enshrined in the Preamble[xxxiv] to the Constitution of India, and its ‘community centric’ roots in the works of B.R Ambedkar and his professor at Columbia University, John Dewey. Oft sidelined by mainstream academia and state narratives, these thinkers, as I will explain, would have a significant role in guiding any lawyer interested in working with communities to solve various environmental problems plaguing Indian society.
About the Author
*Mr. Utkarsh Jain is an environmental lawyer from Delhi. He previously worked with Legal Initiative for Forest and Environment as an Associate Litigator. He recently graduated with a Master of Laws from Cornell Law School. His research agenda lies at the interface of environmental education, adult learning and access to justice. He completed his undergraduate education in law from Jindal Law School in 2016.
[i] It is pertinent to mention that the Standing Committee is merely a decision making body which represents a larger group of experts in the board. The board has not has a meeting since 2014. Refer to https://www.downtoearth.org.in/news/wildlife-biodiversity/national-board-for-wildlife-hasn-t-met-even-once-since-2014-70374.
[ii] Wildlife (Protection) Act, 1972, Sections 5A, 5B and 5C.
[v] Refer to article titled ‘India’s National Board for Wildlife is a big threat to India’s wildlife’, available at https://science.thewire.in/environment/national-board-for-wildlife-prakash-javadekar-environment-ministry-destruction-protected-areas/.
[vi] Refer to Section 5A of the Wildlife (Protection) Act, 1972.
[viii] Refer to article titled ‘Kerala government gives go-ahead to Athirappally hydel power project’, available at
[ix] Refer to article titled ‘Blowout at Oil India well threatens national park in upper Assam’, available at
https://www.downtoearth.org.in/news/pollution/blowout-at-oil-india-well-threatens-national-park-in-upper-assam-71464, also refer to article titled Oil India : Blowout at Baghjan OIL Well, status as on 18.07.2020, available athttps://www.marketscreener.com/news/Oil-India-Blowout-at-Baghjan-OIL-Well-status-as-on-18-07-2020–30950647/.
[x] Refer to article titled ‘Fire at Assam Oil Well After Gas Leak Threatens Life, Livelihood and Biodiversity’, available at
[xi] Refer to the listing of the South Asian River Dolphin under the ‘Red’ category on the IUCN website, available at https://www.iucnredlist.org/species/41758/50383612.
[xiii] Refer to article titled ‘Goa to get another airport at Mopa in 3 years’, available at
[xiv] Refer to article titled ‘The Earth is not for humans alone, says NGT over Deepor Beel’, available at
[xv] Refer to article titled ‘On world wetlands day, a plea to save Deepor Beel’, available at https://www.telegraphindia.com/states/north-east/on-world-wetlands-day-a-plea-to-save-deepor-beel-of-assam/cid/1741843.
[xvi] Refer to article titled ‘Supreme Court paves way for construction of international airport at Goa’s Mopa’, available at
[xviii] In the case of Hanuman Laxman Aroskar & Ors. v. Union of India & Ors., judgment dated March 29th, 2019 and order dated 16th January, 2020.
[xix] Juliana v. United States, 947 F.3d 1159 (9th Cir. 2020), Refer to http://climatecasechart.com/case/juliana-v-united-states/.
[xx] The political question doctrine in the context of the Juliana litigation has been analyzed by Prof. Gerald Torres in his article titled ‘No Ordinary Lawsuit: The Public Trust and the Duty to Confront Climate Disruption–Commentary on Blumm and Wood’, 67 Am. U. L. Rev. F. 49 (2018), available at http://www.aulawreview.org/no-ordinary-lawsuit-the-public-trust-and-the-duty-to-confront-climate-disruption-commentary-on-blumm-and-wood/.
[xxi] In the case of R. v. Secretary of State for Transport,  EWCA Civ 214, available at http://climatecasechart.com/non-us-case/plan-b-earth-v-secretary-of-state-for-transport/.
[xxii] See Jayanth K. Krishnan, Transgressive Cause Lawyering in the Developing World: The Case of
India, in The Worlds Cause Lawyers Make: Structure And Agency In Legal Practice 349 (Austin Sarat & Stuart Scheingold eds., 2005).
[xxiii] K. Sivaramakrishnan, Courts, Public Cultures of Legality, and Urban Ecological Imagination in Delhi, in Places of Nature in Ecologies of Urbanism (Anne Rademacher and K. Sivaramakrishnan, Eds., University Press Scholarship Online, September, 2017), DOI: 10.5790/hongkong/9789888390595.001.0001.
[xxvi] See Elizabeth Fisher et al, Maturity and Methodology: Starting a Debate About Environmental Law Scholarship, 21 J. ENVTL. L. 213, 219 (2009), Todd S. Aagaard, Environmental Law as a Legal Field: An Inquiry in Legal Taxonomy, 95 Cornell L. Rev. 221 (2010), Craig Anthony Arnold, Fourth-Generation Environmental Law: Integrationist and Multimodal, 35 Wm. & Mary Envtl. L. & Pol’y Rev. 771 (2011), Supriya Routh, Experimental Learning through Community Lawyering: A Proposal for Indian Legal Education, 24 Pac. McGeorge Global Bus. & Dev. L.J. 115 (2011)., Michael Diamond, Community Lawyering: Introductory Thoughts on Theory and Practice, 22 Geo. J. on Poverty L. & Pol’y 395 (2015)., Vivek Maru, Varun Gauri, Paralegals in Comparative Perspective: What Have We Learned across These Six Countries, in Community Paralegals and the Pursuit of Justice, (Vivek Maru & Varun Gauri eds., 2018), DoI: https://doi.org/10.1017/9781316671801, Camena Guneratne, Environmental Law Scholarship in a Developing Country – An Alternative Discourse, in Perspectives on Environmental Law Scholarship (Ole W. Pedersen Ed 2018), DoI: 10.1017/9781108635929.
[xxvii] For a detailed annotated bibliography on movement lawyering, refer to Purvi Shah, Movement Lawyering Reading Guide, 47 Hofstra L. Rev. 99 (2018).
[xxviii] Ascanio Piomelli, The Democratic Roots of Collaborative Lawyering, 12 Clinical L. Rev. 541 (2006).
[xxix] Scott L. Cummings, Movement Lawyering, 27 Ind. J. Global Legal Stud. 87 (2020).
[xxx] See generally Gary Bellow, Steady Work: A Practitioner’s Reflections on Political Lawyering, 31 Harv. C.R.-C.L. L. Rev. 297 (1996).
[xxxi] Supra at note 12 see Supriya Routh, Experimental Learning through Community Lawyering: A Proposal for Indian Legal Education, 24 Pac. McGeorge Global Bus. & Dev. L.J. 115 (2011)., Michael Diamond, Community Lawyering: Introductory Thoughts on Theory and Practice, 22 Geo. J. on Poverty L. & Pol’y 395 (2015).
[xxxii] Id at 127.
[xxxiii] Supra at note 12, see Vivek Maru, Varun Gauri, Paralegals in Comparative Perspective: What Have We Learned across These Six Countries, in Community Paralegals and the Pursuit of Justice, (Vivek Maru & Varun Gauri eds., 2018), DoI: https://doi.org/10.1017/9781316671801.
[xxxiv]The Constitution of India, 1950, Preamble:
“WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC and to secure to all its citizens:
JUSTICE, social, economic and political;
LIBERTY of thought, expression, belief, faith and worship;
EQUALITY of status and of opportunity;
and to promote among them all
FRATERNITY assuring the dignity of the individual and the unity and integrity of the Nation;
IN OUR CONSTITUENT ASSEMBLY this twenty-sixth day of November, 1949, do HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTION.”