On the occasion of world environment day, TA spoke to Ms. Avani Bansal.
Avani Bansal finished her Masters in Law from Harvard Law School and B.C.L. from University of Oxford. She is currently working in the chambers of Senior Advocate Mr. Harish Salve, New Delhi. She is passionate about environmental laws, gender issues and access to justice. She has delivered lectures around law schools in India, has featured in the Week and writes for Times of India, Live law and other blogs.
(a) How would you evaluate the current scenario of environment in India?
India’s environment scenario is going through a challenging time. While on the one hand, the temperatures continue to rise unabated, the heat of which can be felt in every town in India by common people, there is no latest comprehensive policy in place to tackle climate change. All is not bleak and Narendra Modi does atleast say that he is serious about ‘making the planet green again’, but no concrete measures have been taken in this direction. India is investing heavily in solar energy. But our reliance on coal, and increasing fuel consumption has neither seen any slowdown, nor is likely to. As India’s population grows, and the rhetoric of development becomes stronger, we need real, concrete and comprehensive measures and benchmarks to make progress on the environment front.
(b) Your comments on global environment discourse/narrative
With Trump pulling out from the Paris Agreement, the environment discourse seems to have changed overnight. While there were incremental steps being taken towards developing a broad global understanding on climate change, the retraction of US from its commitments and its subsequent absence in the process will be telling. Now, is the best time for private sector all around the world to take a more pro-active stand on climate change and take up self- motivated challenges and goals to reduce the climate change burden. In a broader way, the private sector can really seize this moment, and demonstrate leadership in addressing climate change, where the world governments are failing us. However, it cannot be an either – or between the government and the private sector. We have to think of ways in which the need for change and the ability to bring about that change seeps in the psyche of the masses. The dimensions and urgency that the problem of climate change has assumed, requires an attitudinal shift amongst the people, both in the developing and the developed world.
(c) Has the setting up of National Green Tribunal served any purpose?
There are pros and cons of the NGT. For one, setting it up did bring environment issues in focus. By having a separate dispute resolution forum, environment issues came to be streamlined and more and more people could think of taking their environment related grievances to the courts. Also since NGT is in four different places – Bhopal, Chennai, Pune and Delhi, it increased accessibility of the people. The presence of experts on the bench is also a much needed development to address environment issues. However the implementation of NGT orders remains a major challenge. It is a sad reality that sometimes the very government agencies and officials who are supposed to implement the NGT orders, are the ones who ensure its delay and non-implementation. The individuals who are affected the most by environmental issues, be it illegal mining, illegal stone crushers, illegal dumping of fly ash etc. are poor and tribal villagers. It’s a very unfair battle between big corporate houses on the one hand and the poor villagers on the other hand. This is not a new story but the successive change of government has seen little change on this front. While governments change, and new government officers are brought in, the sad state of affairs of the officers playing hand in gloves with the violators of law, continues. There are exceptions to this rule but the prevailing rule itself is of concern and no one seems to be addressing it.
(d) How the judicial outlook towards the environment has changed over the years?
India has been fortunate to witness its judiciary playing a leading role on environment issues. From the golden era, led by the two Supreme Court Justices, Justice P.N. Bhagwati and Justice Krishna Iyer, to the current day, the judiciary has been proactive in dealing with environment issues head on. Although there is a general backlash against the PIL, but the ones that have real merit are still entertained by the Courts. It is important to understand that judiciary has its limitations. It can only pronounce a judgment but various stakeholders, public and private have to come together, to deal with the issue on ground and effectively implement the judgment.
(e) Do you think that environment even today is under the feet of powerful corporate houses, industrial lobbies and corrupt politicians?
I have to say Yes, it is. All over the world, the environment is reeling under the pressure collectively exercised by big corporate houses, industrial lobbies and corrupt politicians. One of the biggest tragedies of our times is that we haven’t done enough to tighten up the loopholes of the legal system that could bring the guilty to book. The truism that the legal net catches the small fish, while letting away the big whales stands true even today. On the one hand, there are big global corporate giants, operating in several countries, who are able to twist and turn the local laws to suit their convenience. On the other hand, there is still no international law that can bring the directors and those running these big global corporate houses to book for the international environmental law violations. The International Court of Justice is the only international dispute resolution forum that can look into environmental violations but it does not have jurisdiction over private parties. Ms. Polly Higgins is advocating for ‘Ecocide’ to be recognized as an international crime and bring it under the jurisdiction of International Criminal Court. This is a brilliant suggestion, one that will make the directors and those running these big corporate houses individually responsible for ‘extensive damage, destruction and loss of ecosystems’ caused by their corporations.
(f) What should be the role of legal community towards the protection of environment?
As I said, as lawyers, we need to work on both the promulgation of required laws and strengthening their implementation. This work needs to happen at multiple levels – international law, national laws and local laws. We need to tighten up the legal system to ensure that people still repose their trust in the laws to get justice. Outside of this, as individuals and a community of lawyers, we need to do much more by first coming out openly in support of the various issues, speaking and writing on the subject to create awareness around them, to fight the fight both in the courts and outside to ensure that our planet lives on healthy and green. It is important to take this debate to the masses, and to make environment issues a part of the living room discussions in India. I started a legal awareness project called Hamara Kanoon on Youtube to explain important laws in Hindi in a short video format. Here is the link to a 10 minutes video on the National Green Tribunal:
(g) There have been numerous laws on environment, still the implementation has been the issue. Why so?
Implementation is a challenge for a variety of reasons. As for public international law, most of it is still in the nature of soft law, meaning that it is in the form of guidelines, along with lack of enforcement mechanism. Even for the hard law bit of International Environmental Law, there are procedural gaps that can be used by nations to derogate from their international commitments. To that extent, there is a need to revise and relook into strengthening the procedure of the workings of the United Nations, and other international organisations, along with international environmental law. United Nations Environment Programme (UNEP) which is the strongest nodal body for environment protection at international level has not been given adequate powers, administratively or financially.
At the national level, widespread corruption and the unwillingness of the government to come down strongly on its own officers, who flout the laws, results in a situation, where common people have no where to go with their complaints. When the ‘rakshak’ (protector) becomes the ‘bhakshak’ (devourer), we need to worry about the prevailing state of affairs.
(h) Is sustainable development just a farce or a reality?
Sustainable Development is a wonderful idea but it is just that – an idea. It’s power lies in its effective implementation. It has been used as a rhetoric to suggest that one will balance both the development priorities and environmental goals, however, in reality, primacy has always been given to development, with no regard to the balancing aspect. The rate at which we are losing the forest cover, quality top soil, air and water quality, biodiversity, animals and birds species are all an alarm to the impending crisis. It’s time we rise, with the rising tide. It’s time we rise, individually and collectively to ensure that we find and keep the earth in right balance. The biggest challenge in this process is to realize that unlike our borders, environment is one. What happens at a remote corner of the world does affect me and my environment. Until we can rise above our own little worlds and see the environment challenge as one in which our fates are united, we have a serious cause to worry.