Reversing the scale of priorities

In the weeks ahead, the Supreme Court will hear arguments on an appeal filed against a judgment of the Madras High Court in P.V. Krishnamoorthy v. The Government of India . There, a series of notifications acquiring land for a proposed eight-lane expressway connecting Chennai to Salem were quashed. The Supreme Court has already denied, with good reason, the National Highway Authority of India’s urgent request for a stay of the judgment. Such an order would have rendered unavailing the High Court’s lucidly reasoned ruling. Indeed, the quality of the High Court’s verdict is such that, when the appeal made against it is heard, the Supreme Court could find that the judgment demands a wider, national embracing.

Question of procedure

The eight-lane highway is part of the “Bharatmala Pariyojana”, a centrally sponsored highways programme, aimed chiefly as a corridor for more efficient freight movement. The intended highway between Chennai and Salem will cover more than 250 km, and, once constructed, will cut its way through a slew of agricultural and reserve forest lands. Although the High Court framed a series of questions that required answering, the ultimate controversy in the case came down to this: was an environmental impact assessment (EIA) required before efforts were made to acquire land for the highway project? If not, at what stage of the project was such an assessment required?

According to the petitioners, many of them landowners, the state had failed to obtain an environmental clearance for the project before acquiring land and had thereby violated its responsibilities. What is more, in any event, such permission, they argued, could hardly be obtained since it was clear that the project would have a deleterious impact on the forests, the surrounding water bodies and the wildlife of the region.

The government denied this. It argued that its power to acquire land under the National Highways Act, 1956, was unconditional. There was, it said, no law mandating an EIA before efforts are made to acquire private land. In its belief, a notification under the Environment (Protection) Rules, 1986, which required an EIA for the construction of a new highway, did not decree such an assessment for the purposes of securing the land.

Sustainable development

For some time now, it’s been evident that the environment is in a state of utter ruin. Recognising this, in 1987, a United Nations-backed committee led by the former Norwegian Prime Minister Gro Brundtland proposed a long-term strategy which called for sustainable development, among other things. This programme, radical at the time, titled “Our Common Future”, defined the principle as an endeavour to ensure that any development “meets the needs of the present without compromising the ability of the future generations to meet their own needs.” Since then, sustainable development has been viewed as something of a mantra in environmental jurisprudence. So much so that in India, even before the principle crystallised into a binding international norm, the Supreme Court in Vellore Citizens’ Welfare Forum (1996) read the idea as intrinsic to India’s constitutional structure. “The traditional concept that development and ecology are opposed to each other is no longer acceptable,” wrote Justice Kuldip Singh. “‘Sustainable Development’ is the answer.”

But grand as this statement sounds, in practice it’s proved scarcely useful. For the courts have invariably seen sustainable development as demanding a balancing exercise, as requiring a calculation of trade-offs between the environment and the economy. What this has meant, as Nivedita Menon has argued, is that the courts of neoliberal India wound up fashioning a sliding scale of priorities in which the environment, particularly the urban ecosystem, always trumped people, but where eventually development trumped it all. This approach, she showed, was typified in the Supreme Court judgment in a case concerning industrialisation at the Kudremukh National Park ( Godavarman , 2002). Holding that any development would have an adverse effect on the ecology and the environment, a balance, wrote Justice Arijit Pasayat, had to be struck. “Where the commercial venture or enterprise would bring in results which are far more useful for the people, difficulty of a small number of people has to be bypassed,” he wrote. “The comparative hardships have to be balanced and the convenience and benefit to a larger section of the people has to get primacy over comparatively lesser hardship.”

Utilitarian reckonings of this kind, perhaps, represent a problem inherent in seeing sustainable development as a virtuous model. It could easily be argued that by its very design the principle calls for a form of calculation that tends to see growth as outplaying all other concerns. As Amartya Sen wrote, while the prominence accorded to sustainable development may be laudable, we must equally ask whether “the conception of human beings implicit in it is sufficiently capacious”. A project, for example, which might deny future generations the opportunity to breathe fresh air may well be defended on a simple application of the norm if those future generations are likely to be rich enough to enable them to live comfortably without breathing fresh air. In this illustration, the principle overlooks, as Prof. Sen wrote, “the need for anti-emission policies that could help future generations to have the freedom to enjoy the fresh air that earlier generations enjoyed.”

Primacy to the environment

Sustainable development can, therefore, work only if the environment is seen as valuable for its own sake. The Madras High Court does this in its judgment in Krishnamoorthy . To argue, as the government did, that an EIA wasn’t required before land was acquired for a highway, as the court recognised, was to effectively place the cart before the horse. As the court pointed out, the highway in question here was a greenfield project that was intended as an altogether new road to be constructed on virgin land. In such a case, to eschew an EIA before land was obtained would have created irreversible effects that would have had a bearing not only on the environment, but also on the social and economic life of the landowners.

“The land of an agriculturist,” wrote Justice T.S. Sivagnanam, for the court, “is vital to sustain his livelihood… The land provides dignity for the person.” The judgment, therefore, not only holds the state accountable for the violation of basic notions of due process, in exercising the power of eminent domain, but also sees the possession of farmlands by farmers as an article of faith. But most importantly, the ruling deepens a commitment to the protection of forests and waterbodies. It places the environment in a position of primacy over unthinking measures of ostensible development.

When a highway passes through a reserve forest would it not, the court asks, “pave way for establishments in the near vicinity”? Would it not “pave way for poaching of endangered species of birds and animals”? Would it not “pave way for illicit felling and transportation of valuable timber”? The rigours of the country’s environmental laws, the judgment therefore holds, ought to outweigh those of procedural laws concerning acquisition of land, for “the protection of environment stands in a higher pedestal when placed on scale with that of the economic interest.”

By so holding, the Madras High Court has effectively reversed the prevailing scale of priorities. This is especially remarkable since it comes at a time when the government is seeking to further weaken the existing norms for environmental clearance. That such efforts at diluting environmental protections are underway when it has become increasingly apparent that climate change represents an existential threat ought to alarm us into action. One way to act is to compel the state to look beyond exercises of balancing, as the High Court does, and to see nature as intrinsically valuable.

Suhrith Parthasarthy is is an advocate practising at the Madras High Court