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In part one of this blog post the new order by the courts in India regarding rights for nature was discussed. In their fundamental, operative parts the Court declared legal standing for the natural entities within these orders. As a result, lawsuits can be brought in the name of these entities and the Advocate General is to be their designated legal representative. This post will discuss whether or not the new orders contribute anything to the existing landscape of environmental law in India. It would be observed that the contribution, if any, is very limited.
Rights for Nature in Indian Law
These orders are a reminder of Christopher D. Stone’s seminal essay ‘Should trees have standing?’  and Former American Supreme Court Justice Douglas’s dissent in Sierra Club v Morton , arguing in favour of giving standing rights to nature.  The concept that once seemed like an ambitious, even bizarre, thought experiment rejected by the US Courts, has been incorporated by the Indian judiciary. In Sierra Club the US Supreme Court rejected the idea that the Sierra Club could sue as an organisation committed to the protection and preservation of the environment. If the club were to be given standing it would be possible only where it represented individual users of the national forest land, to protect their aesthetic and recreational use of the area in question, which in this case was National Forest land soon to be used as the location for a resort.  Justice Douglas in his dissent observed that to simplify the question of standing, nature itself should be granted standing rights and those who are ‘beneficiaries of a wholesome environment’ and have a ‘meaningful relationship to… it,’ as distinguished from the busybodies, be allowed to represent the entities in question. 
In contrast, the Uttarakhand Court did not identify what it would mean for the entities to have standing, apart from having legal representation and the claim being brought in their name. One possibility that can be drawn from Stone and Douglas is the elimination of any further requirement to show corresponding negative impacts on human beings as to the impacts on the rivers themselves for the purpose of establishing standing.  Therefore, whether or not there is an associated negative impact on human beings should not be an additional hurdle for an environmental harm to be eligible for legal redress.
In cases of claims brought for river pollution for instance, the courts in India have noted the impact of river pollution on public health or negative impact on access to clean drinking water.  However, negative impact on human beings has not been a necessary legal requirement for petitions arising in cases of environmental degradation in India. The Uttarakhand Court orders are not the first time that an Indian Court has recognised the inherent value of the environment as separate from its relevance for human use.  For instance in the Calcutta Taj Hotel Case  the construction of a hotel was challenged on grounds that it interfered with the flight path of migratory birds. No specific negative impact on human beings was alleged. The petitioners in the case as the Court identified them, were a group of “lovers of wildlife,” lifetime members of the zoo, local residents, and a trade unionist.  Therefore, the creation of a specific standing right is not a new concept in the legal philosophy of Indian courts in so far as it means recognising the inherent value of nature as separate from its value for human beings.
The case for standing rights for nature by Stone and Douglas is made in the context of a very restrictive Constitutional standing rule of standing in America which excluded the possibility of such claims as the Indian courts like in the cases above, have accepted.  If the Sierra Club were to bring its claim in a Court of India, it is more than likely that it would have been awarded standing. If the rules of standing in the US Supreme Court were more accommodative, it is difficult to see the development of environmentalism in its practical legal form, as it developed in Stone’s essay and Justice Douglas’s defence. Therefore, it is not entirely indefensible to say that when standing is very liberal, as it is in India, it provides for a recognition of the value of nature as it is and not with an accompanying human impact. This is not to suggest that anthropocentrism is not at the nucleus of many legal developments that have taken place.
Anthropocentrism vs Environmentalism
The public trust doctrine is a good example of anthropocentric ethos, and within the doctrine the state is recognized as the trustee of all natural resources that are by nature meant for public use and enjoyment. The public at large is considered a beneficiary of the environment and its various resources. The state as a trustee is under a legal duty to protect the natural resources, for the public. The public trust doctrine was recognised as part of Indian environment law in the case of M.C. Mehta v. Kamal Nath & Ors.  The case concerned a lease given for commercial purposes for a hotel along the banks of river Beas. The government of the State of Himachal Pradesh was found in breach of the public trust doctrine in giving ecologically sensitive land up for commercial purposes. In contrast to the public trust doctrine where the exploitation of nature is a considered a violation to the rights of the public, the orders of the Uttarakhand Court hold that the banks of river Beas be protected for its inherent ecological value, as opposed to in public trust, with the natural entity itself acting as the holder of rights. Even where land does fall into the hands of public trust, it does not necessarily mean that human interest is always against the values of what has been referred to as environmentalism or the interests of nature as it is.  For example, the Court in Kamal Nath and some other public trust doctrine cases did not create a property right for the public under the trust, but instead ordered the restoration of the area. 
According to Article 21 of the Indian Constitution, the Right to Life entails that: “No person shall be deprived of his life or personal liberty except according to procedure established by law.”  The right has shown considerable elasticity and the courts in India have recognised that the right to life includes the right to a healthy environment. It has been argued that this Article has evolved with respect to an anthropocentric approach.  However, this is a narrow reading of the article. The interpretation of what constitutes such a ‘healthy environment’ has varied from a narrow to a broad interpretation.  In its narrow form, the right refers to an environmental threat to human life. For instance in the Shriram Gas Leak Case  where the leaking of gas caused injury, the claim brought entailed a direct human injury. Similarly in Subhash Kumar v. Bihar  where the right was interpreted as protection from anything that ‘endangers or impairs the quality of life.’  Yet another conception of the right is as guarantee to an environment that is pollution free. Therefore, in Charan Lal Sahu v. Union of India  the Supreme Court observed that the right to a healthy environment means a right to pollution free air and water.  In Intellectual Forum, Tirupathi v. State of AP,  the preservation of nature was extended to a consideration for future generations (this is of anthropocentric significance as well, but as can be seen this is only one way of the interpretation of the right). In an even broader sense, the right has been interpreted as the right to not just a pollution-free environment but the protection of ecological balance. Therefore in Virendra Gaur v State of Haryana  the Supreme Court observed that: “Enjoyment of life … including the right to live with human dignity encompasses within its ambit, the protection and preservation of the environment, ecological balance free from pollution of air and water, sanitation, without which life cannot be enjoyed.”  Similarly, maintaining of ecological balance was emphasised in T. Damodar Rao v. Municipal Corp. of Hyderabad.  Michael Anderson has argued that ‘the recognition of the importance of ecological balance offers a path towards an anthropocentric approach as it realises the protection and preservation of the natural environment as an end in itself’.  The recognition of the rights for nature now prove Anderson’s observation to be correct.
The right of standing in nature, in so far as it means that harm to nature is a legal injury, can be used to fill gaps of legislation. In the Kamal Nath case the court made the observation that where no legislation can be found, administrative agencies can take this as guiding principle. It was observed that:
“If there is a law made by Parliament or the State Legislatures the courts can serve as an instrument of determining legislative intent in the exercise of its powers of judicial review under the Constitution. But in the absence of any legislation, the executive acting under the doctrine of public trust cannot abdicate the natural resources and convert them into private ownership or for commercial use. The aesthetic use and the pristine glory of the natural resources, the environment and the eco-systems of our country cannot be permitted to be eroded for private, commercial or any other use unless the courts find it necessary, in good faith, for the public goods and in public interest to encroach upon the said resources.” 
Despite the extensive legislations  that are now a part of India’s environmental law, inevitably there will be some gaps. For instance, in a case a petitioner was accused of the inappropriate removal of ordinary earth from a plot of land in a remote village.  There was no law prohibiting removal of ordinary earth and it did not come under the definition of minor minerals, which were to be protected. In the case the Court noted that there had been a large-scale removal of ordinary earth, and stated that: “no one can have unfettered freedom to degrade and excavate land owned by them where this has a negative impact on the environment and the local residents…..the environment imposes constraints on our freedoms.”  The Court ordered all excavations by this individual to be filled and reclaimed. In coming to this conclusion, the Court emphasized the Right to a Healthy Environment and the need for sustainable development, even on privately owned lands. It can therefore be argued that in cases where no direct human impact can be established, the rights of nature would be of greater assistance for the administrative agencies to fill legislative gaps and for the public to bring claims to enforce the rights of nature.
Furthermore, as Stone observes in his essay, “Judges who could unabashedly refer to the ‘legal rights of the environment’ would be encouraged to develop a viable body of law – in part simply through the availability and the force of expression…such a manner of speaking by courts would contribute to popular notions and a society that spoke of the legal rights of the ‘environment’ would be inclined to legislate more environment-protecting rules by formal enactment.”  Therefore the new (Fundamental) Right can assist in filling legislative gaps for administrative agencies in the exercise of their power, by the common law in deciphering legislative intent and by the legislature in further pro-environment legislation.
Value of the Rights for Nature
Finally, as Redgewell argues, a rights based approach contributes to a more ‘profound agenda’ in regards to protection of nature. “A strong rights based approach is just not concerned solely with the attribution of rights to animals and natural objects for the purposes of environmental protection but with the elevation of animals, plants, mountains, and other natural objects to a level of moral and legal considerability commensurate with that of humans.”  It can be observed that although the Court noted the importance of these resources for human beings, it has recognised them as legal entities with their own rights. Therefore, to a significant extent realising “the moral and legal considerability” that Redgewell considers.
The legal implications of the declaration of rights for nature in these orders needs to be further clarified. Notwithstanding the gaps in the order, it is possible to detect the courts in India adjudicating with the particular needs of the environment even when such a right for nature did not exist. The courts have extended, in the cases discussed above, the human right, the Right to a Healthy Environment to the needs of nature. However, the declaration of a separate right can be utilised for filling legislative gaps. Finally, concerns about negative impact on public participation do not arise in environmental litigation, with continued access to broad standing requirements under PIL and the existing Right to a Healthy environment.
Sugandha is a resident of the Indian capital of New Delhi and a student of law at Durham University. Her love for the environment began when she came to this small northern English city, and was exposed to air she could finally breathe.
References found below.