Nature’s rights

SANJAY PARIKH

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THE recent incident of destruction of the Yamuna flood plain1 by ‘so-called’ spiritually awakened people raises serious questions about human perceptions of Nature’s Rights. Emphasis has been laid on the word ‘spiritual’ because a spiritual person is expected to better understand the interrelationship of human beings with Nature and that their symbiotic coexistence is essential, not only to their very identity but even survival. In fact, it is not possible to visualize the presence of a higher existence without identifying it with the manifestation of Nature in different forms: rivers, forests, mountains, beautiful landscapes and flowers, among others.

The inner realization of this truth leads one to the path of harmony with one’s own self and Nature. They become partners in evolution. This thought exists more or less in all philosophies and expressions. Hymns have been chanted in veneration of Nature. This evolved consciousness can be seen in the customs and traditions of tribes, anywhere in the world, where Nature becomes part of their existence. Dongria Kondh, a ‘primitive’ tribe in Niyamgiri, Kalahandi (Orissa) worships trees, as they find in them the existence of God. They worship the mountain top plateau, rich in biodiversity and the place of origin of a river, as they believe that their deity Niyamraja resides there.

This identity of the self with Nature is essential as it involves a sense of duty to act with responsibility. It does not allow the self to contradict itself in permitting mindless acts of causing harm to Nature. This establishes the tradition of righteous conduct in all actions: that Nature is not the other. With this attitude, when a person takes something from Nature, he is kind and grateful. He is not moved by greed or selfish pursuits. He knows by instinct that Nature has to be preserved and protected for the survival of his own self, his children and posterity. If we accept this as the basis of our culture and tradition, how can our actions be otherwise? How can we ever be insensitive and cruel to Nature?

The destruction of the Yamuna flood plain shows that human nature is complex. Man2 considers himself as a superior creature and takes it for granted that he has the right to use and exploit the natural resources as he likes. It is this selfish attitude that distances man from Nature. A craving for money and power only aggravates this selfish attitude, making him ruthless and insensitive. Even the so-called spiritual practices of meditation and chanting often do not bring a change within. In fact, they enhance, unless one is observant and self-critical, a sense of complacency and a feeling of superiority over the rest. This makes one arrogant to the extent of even justifying an apparent wrong action as right.

In fact, the relationship of the self with Nature – that they are not different – truly represents dharma, righteous conduct. It is this attitude alone which can do justice to Nature’s rights. But the destruction of the Yamuna flood plain has made it clear that words can create an illusion and that actions, either of an individual or a crowd of millions, can be mindless in destroying the very Nature from which all the traditions they swear by originate. This attitude of so-called awakened people sends a wrong message to society. It then becomes imperative to speak the truth: that destruction of Nature is a grossly insensitive human act. No person who is awakened should ever harm Nature.

 

The highest principle, which in essence is our culture, is the identification of the self with Nature. But it is not this principle that is accepted in a materialistic society. We develop principles to suit our convenience and also give them legal cover to justify our wrong conduct. As Vikram Soni points out in his book Naturally, these principles have not worked and we are well beyond the point of precaution. A close look at these principles reveals that enough scope is left in these legal principles to cater to human wants, either individually or collectively, as a society or a nation. These ‘wants’ are then transformed into policies and nations often justify their developmental goals on the basis of these principles. This in turn creates layers and layers of contradictions and falsities, which the author terms subterfuge, play of words and expressions that have no connection with the reality.3

The green buildings, green dams or the recent green capital Amaravati, have nothing ‘green’ in them. They are mere tags. The same logic applies to sustainable development, which sounds so reasonable, and so equitable that everyone jumps at it (for the wrong reasons) to justify their acts as benign. But in actuality, they turn out to be mind-less acts, either to promote economic growth measured in terms of GDP or for making the rich richer; rarely are these acts conceived for the welfare of the common people. Never in these developmental pursuits is Nature heard; the less fortunate are invariably the sufferers. Equity and fairness often eludes sustainable development. The judiciary has unfortunately also fallen into this trap. Judgment after judgment of the Supreme Court shows that the victims of so-called ‘development’ have been a mute Nature, as well as the people who lose their only source of shelter and livelihood.4

 

In the case of hydro-projects, the judiciary has clearly stated that the precautionary principle has no application because such activity presupposes destruction of the environment.5 In fact, this principle remains only on paper and is rarely applied for any of the major projects, whether it is hydro-power, thermal power, nuclear power or other similar projects. ‘Precaution’ has to be applied before Nature is tinkered with, and not after its destruction. What is the point in applying the ‘precautionary’ principle after the river Yamuna is virtually killed by the constant adverse activities or, for that matter, any precious natural resource that exists for all of mankind?

The precautionary principle has to be based on a recognition of Nature’s Right coupled with right human conduct and duty. As an obvious consequence of its wrong application, the polluter pays principle is reduced in its application to pollute and pay. Non-compliance or selective compliance of these principles by the judiciary, which is meant to protect it, has shaken the very foundations of the rule of law. It has encouraged the mighty and rich to perpetuate illegality and claim fait accompli.

 

This malaise, which has now become the order of the day, has virtually ruined the environment. Nothing can be worse when a common man innocently questions: ‘Why is this activity allowed when the law states otherwise?’ One fails to find a rational answer to this simple question. It is obvious that none of the so-called environmental principles have worked effectively to protect Nature. An important reason is that these principles are engraved with a clear bias towards man. Being anthropocentric in character, in actual application, these principles always tilt towards a justification for human activity.6 Popular governments also think it pragmatic to make such policies which are attractive to their vote banks as they know ‘trees don’t vote while people do.’7

Nature is not considered to be an entity, a counterpart with an equal right to a hearing in all such developmental activities. Not only this, but rather unfortunately, the defenders of Nature are invariably subjected to criticism and accusation. They face opposition not only from the project proponents but also from the court. With rare exceptions, they are invariably asked: Who are you? What is your locus standi? How are you concerned with this issue?

These questions are of course humiliating and hurtful. One will be mocked if one were to respond truthfully by stating, ‘I am defending Nature.’ One will be looked at with suspicion: Why is this man so kind to Nature? If one were to question that the farmers cannot be uprooted without rehabilitating them and restoring their means of livelihood, one would be branded as being ‘anti-development’. The day is not far when this expression will change to ‘anti-national’.

 

Many a time experts become the worst enemies of Nature. They speak contrary to common sense. They give opinions only for the sake of contradicting another expert. Sometimes they are bought over by people with vested interests. In one case,8 the experts opined that if an embankment is built on the flood plain, the other side (landward) would cease to be a part of the flood plain! Industry considers it uneconomical to invest money in pollution control devices or in putting up effluent treatment plants. For them, profit making is the main goal. Resultantly, the air and water is polluted and, as mentioned above, the polluting activity continues by either paying a fine (pollute and pay!) or by bribing the department.

In the climate change debate, nations continue to justify emissions and persist in seeking mitigation measures by others. Developed nations do not want to sacrifice their so-called idea of development, which is essential for sustaining costly and luxurious lifestyles of their citizens. The brunt of adverse climate effects has ultimately to be borne by the poor and the developing countries. Whether individually or collectively, people are playing with words, shielding their wrong acts under the guise of ‘national interest’ and justifying their policies as ‘pro-people’. Nature does not find an equal place either in discussions or the decisions taken by governments.

Why should Nature not be treated at par with corporations9 or deities10 that are in law treated as independent juristic entities with a locus in legal disputes? Inspiration could be taken from Bolivia, which is looking at passing a law that treats Nature as a separate legal entity and is couched in principles such as harmony, collective good, guarantee of regeneration of Nature and non-commercialism.

 

The book ‘Naturally’ makes an important point when it says that human rights are about human conflicts and crimes against humanity, but Nature’s rights are actually the rights for human survival.11 What can be the guiding factor in law which should prevail in the judicial decision making process? Of course, it cannot be the sustainable development principle as it has created more confusion than what possibly existed before this principle originated, resulting in irreversible loss to the ecology and environment.

Time has come to further develop and expand the concept of public trust and inter-generational equity. The public trust doctrine12 brings Nature at the centre by recognizing that human beings are only its trustees. It makes the government a trustee on behalf of its people. It places an obligation on decision makers to use natural resources with equity and fairness. It promotes a sense of duty to protect and preserve Nature. It compels the government to make such policies and laws that do equal justice to Nature. Gandhiji emphasized the trusteeship concept as a part of human conduct, so that every action becomes transparent as well as just and fair. In many countries like Bolivia, Germany, South Africa and Kenya, the state has even instituted commissions to review their laws on the basis of the inter-generational equity principle.

 

In our Constitution, Article 21, which defines life, includes environment within its purview. Article 48-A of the Directive Principles of State Policy imposes an obligation on the state to protect and improve the environment and save it from any adverse impacts. Article 51-A (g), which falls in the chapter containing Fundamental Duties under the Constitution, casts an obligation on every citizen to protect the environment. The constitutional obligation under Fundamental Duties is meant to instil a spirit of trusteeship in every citizen. The obligation of trusteeship brings in objectivity, responsibility and promotes self-discipline to care for Nature’s Rights. If Nature is to be saved for future generations, we must acknowledge the deep meaning of the old saying: ‘We do not inherit the Earth from our ancestors: we borrow it from our children.’

 

Footnotes:

1. The Art of Living (AoL) Foundation celebrated its 35th anniversary by hosting a World Culture Festival from 11-13 March 2016 on the flood plain of the river Yamuna by raising huge constructions, knowing well that the place chosen by them is a valuable natural resource, essential to the survival of the river. The use of the flood plain was in violation of the National Green Tribunal order dated 13.01.2015 passed by its Principal Bench.

2. The term ‘man’ includes all of mankind. It has been used as understood in the Stockholm Declaration, 1972, as man being both the creature and moulder of his environment.

3. Vikram Soni, Naturally: Tread Softly on the Planet. HarperCollins India, 2015. ‘Postscript: The Subterfuge of Language’, pp. 208-209.

4. Sanjay Parikh, Foreword, in Geetanjoy Sahu, Environmental Jurisprudence and the Supreme Court. Orient Blackswan, 2014.

5. Narmada Bachao Andolan v. Union of India and Others, Supreme Court, 2010.

6. In T.N. Godavarman Thirumulpad v. Union of India, the Supreme Court in 2012 said that ‘Anthropocentrism is always human interest focused and that non-human has only instrumental value to humans. In other words, humans take precedence and human responsibilities are reduced to non-human based benefits to humans. Ecocentrism is Nature-centred where humans are part of Nature and non-humans have intrinsic value.’

7. T.N. Godavarman Thirumulpad v. Union of India, Supreme Court, 2006.

8. DDA v. Rajendra Singh, Supreme Court, 2009.

9. Under Section 9 of the Companies Act, 2013, a company is deemed to be a juristic entity and it is given the right to sue and to be sued as a separate entity.

10. The Supreme Court in 1997 in the case of Sri Adi Visheshwara of Kashi Vishwanath Temple, Varanasi v. State of UP, settled the law by giving deities the nature of a juristic person and held that they have a right to move the court.

11. Vikram Soni, op. cit., p. 229.

12. It was held to be a facet of environmental law in the case of M.C. Mehta v. Kamal Nath by the Supreme Court in 1996. The bench pointed to the judgment of the Supreme Court of California in National Audubon Society v. Superior Court of Alpine County, which explained the concept of public doctrine succinctly as follows: ‘Thus, the public trust is more than an affirmation of state power to use public property for public purposes. It is an affirmation of the duty of the state to protect the people’s common heritage of streams, lakes, marshlands and tidelands, surrendering that right of protection only in rare cases when the abandonment of that right is consistent with the purposes of the trust.’

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