Neoliberalism and Environmental Justice

Neoliberalism is broadly understood as a set of ideas that emphasises the principle of limited government and self-regulating markets (Chomsky 1999). The primary premise of neoliberalism is the deregulation of the economy and trade barriers, letting markets fix the rules for almost all goods and services in society. The government does not interfere in its affairs, which means that people are also not involved in deciding the service price and potential beneficiaries for each service. In the context of environmental governance, it advocates deregulation and decontrolling of the use and distribution of environmental resources. The advocates of neoliberal principles believe that modern technology and science with enormous capital will enable the market agencies to offset the negative environmental externalities of infrastructure projects. And the infrastructure projects' benefits will help improve the people's living conditions and alleviate poverty. To achieve this, the government must reform its environmental policies to expedite the clearance process for the industries to secure a license to establish, operate, and enable them to acquire and extract natural resources in a time-bound manner. Whether accurate or not, this description serves to remind us that the environmental regulatory authorities are not independent in the neoliberal era but reflect the distribution of power in the larger society. This type of environmental governance and management idea shifts the locus of decision-making power away from resource-dependent community members and their representatives towards those with capital and technology. Such a neoliberal vision of environmental governance contradicts the foundational principles of environmental justice that demand procedural and distributive equity in the ownership, access, and use of natural resources. The idea that a self-regulating market can use resources lures decision-makers to prioritise the interest of the corporate houses and bourgeoisie, those with the capital to invest, and whose goal is to accumulate and appropriate more resources. 

Like many developing countries, India liberalised its economic policies in the early 1990s. For a low-income economy that had been mired in near stagnation through centuries of colonial rule and which made slow progress in the decades following independence, the economic reforms in India have contributed to achieving a relatively better growth rate than what it was in the early decades of independence (Drèze and Sen 2013). However, the economic and infrastructural progress has significantly impacted environmental and human life. Since the onslaught of neoliberal policies and economic reforms post-1990 in India, governments across the political spectrum have advanced the extraction and diversion of natural resources indiscriminately, causing pollution of air and water bodies and resulting in the displacement of resource-dependent people from forest and land (Kanchi and Manju 2021; Fernandes 2011). The neoliberal approach and policies of the government have diluted, to a great extent, the robust environmental laws and institutions developed since the 1970s.

Further, amendments to environmental laws are continuously taking place to suit neoliberal policies. Environmental regulations in India recognise the role of public and local communities in the decision-making process involving infrastructure projects. The environmental laws also impose duties on the government to use resources sustainably and follow the precautionary principle, “polluter pays” principle, sustainable development principle, inter- and intra-generation equity principle, public trust doctrine, and absolute liability principles in the governance of environmental resources. But in practice, these principles are not complied with. In particular, the dilution of public participation in the decision-making process and clearance of projects without meaningful consultation with the project-affected people and adequate environmental considerations, impact assessment studies. The failure of government authorities to reconcile the critical issues of human rights and environmental justice with development projects has given rise to several environmental conflicts and litigation in the last three decades.

Environmental Litigation and the Judiciary

The failure of government authorities to enforce environmental laws and dilution of environmental laws to advance the interest of the corporate and bourgeois interest has prompted environmentalists and common citizens as well as non-governmental organisations to approach the courts, particularly the higher judiciary, to seek suitable remedies. Interestingly, the judiciary has also responded proactively to these different environmental problems. While the executive and the legislature conventionally play the most crucial role in governance, the judiciary has also begun to play an active role in the environmental governance process in the Indian experience (Sahu 2014). The increasing intervention of the judiciary in resolving environmental disputes as constitutional issues has led to an entirely new phenomenon; namely, the emergence of the courts of law in India as the sole dispensers of environmental justice.

In 2000, Upendra Baxi described the introduction of public interest litigation (PIL), the timely demise of the law of standing, and the expansive interpretation of Article 21 of the Constitution, which paved the way for developing a body of environmental law through judicial edict. Since the liberalisation of locus standi principle for protecting the environment and environmental litigation in India continues to increase on a wide range of temporal, spatial, and sectoral scales across the country as a tool to protect and improve the environment. Other legal scholars and lawyers (Divan and Rosencranz 2002; Desai and Muralidhar 2001) are also of the opinion that the Supreme Court's relaxation of the locus standi principle and its encouragement to petitioners to raise environmental issues has been hailed as one of the most critical factors for the evolution of environmental jurisprudence in India. From the Vardhichand versus Ratlam Municipal Council in 1979–80, the first environmental litigation in the history of environmental jurisprudence demanding better environmental conditions in the city by providing proper drainage and sanitation facility for the citizens, the nature and scope of environmental litigation have changed exponentially. Today, there is environmental litigation in every part of the country focusing on every sector ranging from solid/toxic waste management, forest degradation, air and water pollution, noise pollution, nuclear waste, and bio-medical waste to forest fire, illegal mining, power plants, coastal and wasteland land degradation, wildlife protection, infrastructure, and huge investment projects violating environmental laws. Environmental litigation raising irregularities in approving industry licenses and non-compliance with environmental regulations by the industrial units has invariably received a sympathetic hearing in the Court. Irrespective of the location and scale of the industrial activities and the owner of the industrial units, the Court in the pre-1990 phase maintained that the private interest of the industries and real estate could not be promoted at the cost of the environment and the health of the people (Sahu 2014). To appreciate the developed environmental jurisprudence, one must remember that India has long been recognised to be one of the countries of the world with enormous environmental justice groups and non-government organisations, public-spirited citizens, and lawyers, including a few active judges with benign intent, which once again just happens to advance the principles of environmental justice. However, a closer look at the judgments of the Court on environmental litigation, challenging huge investment and infrastructure projects in the post-liberalisation phase, reveals that the green approach of the Supreme Court ultimately fades away in such litigations. 

India's post-liberalisation and economic reforms have witnessed a massive diversion of resources for the capital-intensive and extractive industries. The liberalisation of regulation to promote industries has had severe environmental and social impacts across the country. Huge investment and infrastructure projects have been introduced and supported in a big way by the national and state governments to expand economic activities and growth. However, the indiscriminate promotion of industries without following the due process of environmental laws has led to an increasing number of PILs appealing against the decision of the state and central environmental regulatory authorities. But the Court's response to these litigations directed against the state-initiated public infrastructure projects that violated environmental laws and policies has been quite different from its pro-environment approach in other environmental litigations.

Contrary to its pro-environmental litigation filed against the industries and community, where the Court had come down heavily on state agencies, it follows a hands-off approach towards environmental problems associated with the development of infrastructure projects carried out and promoted by the state. The development projects, whether sustainable or not, takes precedence, even at the cost of irreparable and irreversible damage to the environment and biodiversity. Some of the post-1990 judgments of the Supreme Court are discussed below to illustrate the shift in the environmental philosophy of the Court to accommodate the neoliberal policies of the Indian state. 

One of the first contentious cases in the early years of economic reforms in the 1990s was Narmada Bachao Andolan v Union of India and Others. The Narmada Bachao Andolan (NBA) filed a petition in 1994 challenging the Union of India's decision to grant environmental clearance to the Sardar Sarovar project without any socio-economic and environmental assessment studies (Writ Petition No. 319 of 1994). The NBA petition argued, among other things, that the Government of India had yet to consider all the relevant issues. It had yet to give the people affected by the project a chance to present their case before it. The petition further claimed that these omissions had led to a flawed project with grossly underestimated social and environmental costs besides violation of human rights and environmental damage.

In conclusion, it demanded that a review of the project be undertaken. More specifically, it pleaded with the Court to either order the stoppage of the project to implement a proposed alternative plan or direct the Union of India to set a new tribunal to review the project, which would include the participation of the affected people, or to set up an independent team to review the whole project. In response to all the issues raised by the NBA, the Supreme Court studied the scope of its petition before deciding to restrict it to relief and rehabilitation issues. It observed that a conditional environmental clearance given in 1987 had been challenged in 1994 and that the pleas relating to the raising of the height of the dam and the extent of submergence, environmental studies and clearance, hydrology, seismicity, and other issues, excepting the implementation of relief and rehabilitation, could not be permitted to be raised at this belated stage [i].

In the Delhi Development Authority v Rajendra Singh & Others, the petitioner drew the attention of the Delhi High Court to the massive construction work for the Commonwealth Village carried out on the flood plain of the Yamuna river by the government agencies and the Delhi Development Authority (DDA) and noted its apprehension that this kind of construction activity would not only destroy the Yamuna river by affecting its ecological integrity but also the groundwater flow, thereby posing a grave threat to the availability of water for the city of Delhi. The petitioners moved the High Court to stop the entire project. The division bench of the Delhi High Court, by the order dated 3 November 2008, refused to interfere with the project in question but directed that the committee under the chairmanship of Dr RK Pachauri, which was to be constituted by the government, should examine and monitor the construction carried out by the Delhi Metro Rail Corporation (DMRC). The Delhi High Court's decision to constitute a committee to examine the matter was challenged by the DDA in the Supreme Court. In response, the Supreme Court pointed to the judgment in Narmada Bachao Andolan versus Union of India case (2000 10 SCC 664 para 229), in which it had held that the PIL should be thrown out at the threshold if it challenged the project after its commencement. It had also held that relief should only be given to persons who approached the Court after inordinate delay with reasonable explanation under Articles 226 and 32 of the Constitution. The Court reiterated that the principles of delay and laches apply to PILs and that if there was no proper explanation for the delay, they were liable to be summarily dismissed on that account. The Court further observed that though both the petitioners claimed to be conversant with environment and ecology, they had approached the High Court only in the middle of 2007, four years after initial clearances had been issued. As a result, the writ petitions were liable to be dismissed on delays and laches.

But the most serious concern with reference to the Supreme Court’s post-1990 environmental judgment is its manner of legitimising environmental irregularities and illegalities by applying the principle of fait accompli. In the rule of law, an illegal action cannot be sustained merely because the project has proceeded substantially at considerable costs or because of its importance. In short, fait accompli cannot be pleaded as an equitable consideration to perpetuate the wrong. The status quo ante in all such cases should be restored. This is of great relevance in the environment, where the damage is irreversible, like felling of trees and cutting mountains for infrastructure projects. Therefore, permitting fait accompli in such cases can have disastrous consequences. It is a matter of concern that fait accompli is becoming another way to indirectly achieve what the government or a project proponent cannot achieve directly. Unfortunately, the courts allow such pleas notwithstanding the serious repercussions it has on the rule of law and the environment. There are instances where the Supreme Court did not allow illegality to continue and directed restoration of the original position by observing that any judicial discretion to allow illegality in the form of fait accompli would encourage and perpetuate illegality and directed demolition.[ii]

A disturbing trend, however, has emerged in the recent past where a project commences without requisite environmental clearances. When questioned, the argument of fait accompli is put forth on the ground that the project has substantially progressed and considerable expenditure has occurred. In the case of government, this money is from the public exchequer. In this situation, either the court accepts such a plea on equitable considerations or the government comes out with post-facto clearances. The following judgments indicate that the future of environmental law is in peril, and environmental justice is at the vanishing point. These judgments echo the neoliberal approach towards development. The company started the project without environmental clearance in Alembic Pharmaceuticals Ltd. vs Rohit Prajapati (2020)[iii]. The company then relied upon the Ministry of Environment and Forests (MoEP) circular, dated 14 May, 2002, permitting ex-post facto clearance. The Supreme Court, after holding that ex-post facto clearance, would violate the precautionary principle and sustainable development, ultimately allowing the pharma company to continue by applying the “proportionality principle” and imposing only the fine. Following this, the Supreme Court in Electrosteels Limited v Union Of India (2021)[iv] stated the importance of environment clearance before setting up any project or expanding it but allowed the shifting of the project without having valid environment clearance on the following reasoning:

“The question is whether an establishment contributing to the country's economy and providing livelihood to hundreds of people should be closed down for the technical irregularity of shifting its site without prior environmental clearance. The answer has to be in the negative.”

In Pahava Plastic Pvt Ltd. v Dastak NGO and Others (2022)[v], the Supreme Court allowed the industry to manufacture organic chemicals by reiterating the judgments in the Alembic and Electro Steels cases by giving economic development precedence over the environment. 

Delay in disposal is yet another factor used to further the illegality. Though the saying is that delay denies justice, justice is not only denied but the Court is also persuaded to accept the wrong due to the “passage of time.” There are several examples: World Cultural Festival organised by Sri Sri Ravi Shankar was allowed on the Yamuna flood plain, though it was declared as ecologically sensitive zone by the principal bench of the National Green Tribunal,  prohibiting any developmental activity thereon. The festival was permitted on the flood plain on the ground that the work had already commenced, and the date of the festival was near. Similarly, the trees were cut in the Chardham case, and work had commenced without requisite forest clearances. Another example of how the fait accompli situation was cleverly created is the Aarey Forest case in which the Bombay High Court had allowed Maharashtra Metro Rail Corporation Limited to fell 2,500 trees in the forest area for the construction of a coach shed. The petition against the said order was filed in the Supreme Court, which ordered that no trees shall be cut till the next hearing. However, the government informed the Court that 2,141 trees had already been felled. There are also cases where though the interim order was that any development would be at the party’s own risk; even after the Court found the case unsustainable, it still did not disturb the project. These cases have encouraged the project proponents to take such a risk at their own cost, hoping that eventually, they may succeed on the ground that substantial development has happened at considerable monetary costs. Likewise, in Goa’s International Airport case[vi], the Supreme Court first remarked on the illegal construction and felling of 54,716 trees and ordered the suspension of environmental clearance in March 2019. Suspending the environmental clearance to the airport, Justice D Y Chandrachud remarked that “there can be no gambles with the environment: a ‘heads I win, tails you lose’ approach is simply unacceptable; unacceptable if we are to preserve environmental governance under the rule of law.”[vii] But in the final order delivered in January 2020, the Supreme Court lifted its suspension order of an environmental clearance given for a greenfield airport at Mopa in Goa after the project proponent GMR Goa International Airport Limited (GGIAL) assured the Court that the airport would adopt a “zero carbon programme” for both constructing and operating the airport (Hanuman Laxman Aroskar v Union of India and Others 2018). 

Fait accompli has thus evolved as a new strategy of governance. If the government or a project proponent wishes to do something, it proceeds as it likes regardless of legalities and, when questioned, pleads fait accompli. The Court has accepted it by giving precedence to economic development. Using fait accompli in this manner ultimately erodes the rule of law.  

Likewise, a host of environmental litigations challenging the environmental clearance given to the power plant, airports, mining projects, national highways, and metro trains have faced similar fates before the Supreme Court. In such cases, the Court has primarily relied upon the state's position that infrastructure projects are an essential requirement for the greater public good, which gives them a measure of immunity from challenge or review in a court of law. In brief, the judicial approach towards environmental litigation challenging huge investment and infrastructure cases places profit over environment and people under the shadow of larger public and national interest. 

Conclusions