‘The world we have treated as an object, has become a subject again.’
Luc Ferry, 1992
THE French philosopher Luc Ferry writes that the 18th century philosophers conceived of the social contract in order to govern relations among men. The social contract was the embodiment of a humanistic vision of the world and a humanist legal order, where nature as an object was dominated, exploited, ravaged.
The Declarations of the Rights of Man failed to endow nature with subjecthood; it would forever remain objectified at the mercy of man. If one has to give back to the earth what one has borrowed from it, there is a need of entering into a ‘natural contract’ with nature by replacing the humanist vision of law with a cosmic one.
The Declaration of 1789, according to Michel Serres, glossed over the world, giving man the sole status of subjecthood but this tradition has to be subverted. The law must be written for those who have none, nature must be a legal subject, the rights of man must be questioned and the animal and vegetable kingdom brought into legal and ethical consideration. Serres emphasises in Le Contract Naturel, ‘…as much as nature gives to man, man must return to nature, a new legal subject.’
Records of medieval trials show that in the pre-modern era animals were looked upon as legal subjects, viz. the case when the village of Saint-Julien took legal action against a colony of weevil, or in Coire in Switzerland where the citizens took a mound of larva before their tribunal, or the case of the leeches of the lake of Berne who were given three days by the Bishop of Lausanne to vacate the infested waters. In each case the animals were provided with counsel and summoned to court during the trials. As the medieval world turned upside down, nature as legal subject disappeared into oblivion to be replaced by the anthropocentric vision of the Enlightenment.
In the late 19th and early 20th centuries, laws like France’s Grammont Law existed to prevent cruelty to animals, but it was the Tierschutzgesetz of Nazi Germany which, for the first time in history, accorded subjecthood to nature. The law of the Reich was enacted ‘with a view towards protecting nature.’ It states in its preamble, ‘The (law) would recognise the rights which animals inherently possess to be protected in and of themselves…’ Much later, in 1972, Christopher D. Stone argued that ‘we (should) give legal rights to forest, oceans, rivers and other… natural objects in the environment… indeed to the natural environment as a whole.’ While awaiting the decision of the United States Supreme Court in the Walt Disney-Sequoia National Forest matter, Stone lamented, ‘…if I could get the courts thinking about the park itself as a jural person… the notion of nature having rights would make a significant… difference.’
Stone goes on to say that man should be entrusted with stewardship of the earth as guardian of those who are unable to speak and voice their needs, and it is this trusteeship which is the core of the state’s and society’s responsibility towards nature. Most states have donned the mantle of stewardship, some more than others, but none have stated explicitly that nature or wildlife have an intrinsic right within them to a rightful existence. The laws and policies, however, have been more and more informed towards a position as if nature had a right. This is the legacy of the 20th century ecology movement.
Environmental law in India traverses back and forth between the triple domains of use, regulation and conservation, between the rights of nature and the rights of man, at once contradictory and asymmetrical. It is a composite bundle comprising a miscellaneous assortment of laws, both statutory as well as that which emerges from the court, the combined efforts of legislative and judicial acumen. Laws governing the conservation and use of natural resources in India involve multiple domains of concern – from water, air, forests, wildlife, hazardous substances and pollution to issues of land use, industry, mining, irrigation, town-planning, energy, agriculture, waste, health and intellectual property rights. They concern wetlands and wastelands, the protection of fragile coastal areas, monitoring the purity of water and air and, fundamentally, the traditional rights of the local communities and the continuation of cultures. In this vast legal gridiron, conservation laws form but a miniscule cluster of acts, rules and notifications, but having a far-reaching impact upon the lives and livelihood of the people dependant upon these resources.
The statutory regime is overlapping, an admixture of colonial economistic legacy and post-Rio ecological consciousness. An apt illustration would be, on the one hand, the forest laws constituting the timber extracting Indian Forest Act, 1927 and, on the other, the biodiversity conscious Forest Conservation Act, 1980 and the Wildlife (Protection) Act, 1972. In the interim are numerous state legislations, the various rules governing the transit and felling of timber, grazing and non-statutory notifications relating to joint forest management and coastal regulation zone.
Intrinsically, the regime entwines with laws relating to the acquisition of land – the omnipotent Land (Acquisition) Act, 1894, the numerous land revenue codes and tenancy laws. It encompasses laws empowering local institutions to own, govern and manage natural resources within their jurisdiction, such as the 73rd and the 74th Amendments to the Constitution of India and the Panchayat (Extension of Scheduled Areas) Act, 1996 which attempts to herald a statutory regime for tribal self rule.
To this must be added the constitutional provisions protecting the natural, economic and cultural rights of the tribal communities who form the most ancient of forest dwelling and dependent societies. Above all it binds the polis and the civitas in a communion to protect and improve the natural environment and to safeguard its forests, lakes, rivers and wildlife, advocating an almost Gandhian compassion towards fellow living beings.
The conservation-use axis is intersected and refracted twice, with the development activities of the state and industrialists and with the traditional dependence of forest dwellers. The duplicity in state policy is partially reflected in the laws and in their implementation. Environmental degradation, including species depletion, is caused by industrial and commercial intrusion in natural habitats. This includes mining activity, constructions such as jetties, large roads, bridges, tourist resorts, factories and refineries, large mechanised trawlers and other infrastructures for aquaculture, plantations and farm forestry and the nefarious operations of poachers, timber traders, contractors and middlemen. Ironically, they bypass or obtain clearance under the Forest Conservation Act, which disallows ‘non-forest’ or unecological activities in environmentally fragile areas without permission from the central government.
Forestry projects have been launched in several parts of India and are claimed by many to be nothing but logging and agroforestry operations disguised as biodiversity conservation. In order to facilitate these activities the law is not only manipulated but reversed, as large tracts of protected natural habitats are denotified to release them from the legal fold for the plundering of natural wealth. This trend of denotification has rapidly proliferated in recent times, with the necessary state backing, to facilitate mines, tourist resorts, golf courses, hydel power projects and factories and has now assumed such proportions as to constitute a major legal problem for the environment.
Conservation of nature in Indian law is read as being antithetical to people; the state seeks to evict/ relocate local communities and their large herds of domestic animals from the precincts of wildlife in order to create ‘inviolate’ areas of protection. However, the ‘biotic’ pressure on natural resources stems from city dwellers in their multifarious needs of modern, urban sophistication in which they are willy-nilly ensnared. The urban population does not pay the price but expects those dependant upon the forest to bear the burden of their needs by giving up their life, their homes, the disintegration of their culture – in short, alienation from the very world wherein they have evolved. This raises the moral question of denying developmental benefits to the impoverished, hardworking tribal communities, though some opine that the choice be left open to the concerned society. The complexity of the question – between the protection of the rights of the environment and the rights of the people – is reflected in the existence of both these rights, and between the rights of the environment and the rights of the state to develop and propagate industrial and commercial embryos amid natural splendour and diversity.
Such variegated and complex legal structures prevail in the other natural resource law regimes as well. Water, air and land laws enjoy separate and overlapping legal regimes constituting statutes, case law, government notifications, circulars and orders. Water law, for instance, encompasses laws governing rivers, groundwater, tanks, irrigation, riparian rights, water harvesting structures such as dams, and the use and accessibility to such structures as well as the quality of the water itself. If the natural habitat and biodiversity are sought to be conserved, the law has to monitor, control and regulate the use and abuse of water and air in order to maintain its purity. Therein too, the debate between development and environment and the state’s propensity to compromise has been brought to the fore. The polluter has been brought to the gallows only by the harsh admonition of the court.
It is to the court that the society has turned, at first hesitatingly and now expectantly, as a last recourse of salvation, to retrieve and to hold the last vestiges of nature. The court has, in the past few years, increasingly constructed the ‘real’ environmental statute from the legal ‘text’, repairing, improving, correcting existing laws and creating new ones in areas where hitherto it has been silent. The power to declare law carries within it the power and the duty to make law where none exists. The French Code Civil holds a judge who refuses to give judgement under the pretext of silence, obscurity or inadequacy of the law, as ‘guilty of a denial of justice.’ It is said, ‘it matters how judges decide cases;’ for the environment it has certainly mattered and the ‘law has often become what judges say it is’ (Dworkin 1986). The judge as legislator has not only redeemed existing environmental law and created new ones but has also put appropriate a-contextual meanings to statutes. He has adhered to the mores of the times, manoeuvring the law to recognise the values of deep ecology in the intrinsic values of nature inherent in itself.
To this twinning of parliamentary and judicial law, one must juxtapose people’s law, prevalent over centuries as customary practices, norms and rituals. Thus environmental law forms a triptych, influencing and informing each other simultaneously. It is argued that the uncoded non-modern demesne of environmental law is more ecological, more intrinsically conservationist. While it is apparent that state policy is dual and ambiguous in its dealings with environment and development, more often bending towards commercial expansion; it is obvious that immoral monetary exchanges have greatly influenced the course of legal retribution.
The court too has often not looked at this conflict directly and skirted the dilemma by following the path of tortuous redemption such as compensation. The environment-development debate has not been enacted fully in the judicial theatre, wherein the choice is a moral one as to what kind of development is it that we are seeking. As for the philosophical question of man-in-nature/nature-without-man, the statutory regime is cleverly silent, leaving it to judges to attribute a-contextual meanings. Unlike the courts of other Commonwealth countries like Canada, Australia and New Zealand, customary law is yet to be accepted as part of modern legal discourse in India.
Beyond the development debate, the question of environment falls within the larger rubric of the enterprise of modernity, especially the enterprise of modern science. It is positivist science’s ultimate dream not only to dominate and rape nature but also to perfect it. Conservation, therefore, is entwined with larger issues of science and the relationship between man and nature. Cultures thus cannot be sustained by simply adopting languages of rights, which can serve only as a language of resistance and negotiation, albeit a powerful one. Nor can they be made equitable by sharing monetary benefits, which are at best palliatives to contain the ‘other’. One must either seek multiple spaces where cultures can co-exist or forcibly break the barrier and create a new grammar.
Law, insofar recognized as a regime builder, has the power to introduce new grammars and initiate changes, as can science. Legal discourse thus cannot limit itself to reform but has to rewrite history. The last four hundred years is but a parenthesis in the history of man, where man and nature were separated and man was attributed with a moral and legal status. The time is now appropriate for conferring legal status to non-human life (Ferry 1995) and resolving the tensions therein.
Benjamin N.Cardozo, The Nature of the Judicial Process, Yale University Press, New Haven, 1921.
Ronald Dworkin, Law’s Empire, Fontana, London, 1986.
Luc Ferry, The New Ecological Order, Chicago University Press, Chicago, 1995.
Paul Ricoeur, The Just, Chicago University Press, Chicago, 2000.
Christopher D. Stone, ‘Should Trees Have Standing? Towards Legal Rights for Natural Objects’, Southern California Law Review, 1974.