ENVIRONMENT AND THE LAW

At one time the environment was thought to be all about aesthetically pleasing scenes and beautiful surroundings; the law had little to do with it then. Then it became a question of the quality of our lives - the air we breathe, the water we drink, the state of our forests, hills and seas; the law then moved in as the need was felt for controls and regulation. I dare to say that now the environment has become an issue of survival - cities have become gas chambers, rivers are carriers of untreated sewage and industrial effluent, the earth a dumping ground for hazardous waste. Mankind's capacity to be oblivious to the consequences of its acts seems limitless.

It has been said, and not without justification, that the law is twenty years behind society. In its response .to the environmental threat, however, the law, in part measure, has responded creditably. International Declarations such as Stockholm and Rio have galvanized national legislatures, and we have produced a good body of statutes to deal with air and water pollution and disposal of hazardous wastes.

Sadly, the growth of law and improvement on the ground seem not to have a direct co-relation; cynics would say its an inverse ratio. We need to reflect on this fundamental problem - that our age, supposedly more civilized than before, has little voluntary compliance; and even when laws are passed to guide society into appropriate modes of interactive behaviour, these are not observed; and its only when punitive action is imminent and the threat of personal loss and hardship is at the door do many people act in consonance with what has been formulated for the general good.

So it comes down to this, whether in the field of environment or any other social aspect that the law deals with - the important aspect, the determining one, the litmus test is the efficacy of enforcement and securing compliance with the law. Much more attention needs to be paid to this than has been the case; otherwise, it will be the area where good intention and concerned legislation flounder and peter out. We need to closely and critically look at the realm of enforcement; that may well result in quite some change from current methods, and the adoption of some unusual ones. It is an exercise which we should be keenly engaged in; at stake is the well being of our lives and that of the law; indeed, the very survival of both.

There are some root issues - the need and desirability of inner change which is the best of all, the examination of what the true role of money should be and how the skewered notion of profit has upset the balance in just about anything of worth in our lives. My limited purpose in this piece is to offer some thoughts on less radical prescriptions for enlbrcement.

1 It is a mistake to rely exclusively, or much, on the conventional punitive methods of the State. Prosecution, fine, confiscation etc. have proved woefully inadequate as remedials or deterrents. The procedures are tardy, the accused are entitled to the benefits of innocence till proved guilty, investigating and prosecution machinery lack resources, always of material and often of competence; the accused of means can rely on a wealth of legal talent. And over all this .is the spectre of corruption which, where it infects - whether at the police, lawyer or Judge part of the body politic - is the most powerful corroder of civil society and the rule of law.

2 A central fact should be clearly recognized, and constantly kept in mind. Where the cost of compliance is more than the risk of noncompliance, market forces of maximization of profit and comparative advantage will move the decision away from law abidance and social good. Instead of bemoaning the unscrupulous ways of the market, we should, pending long range social change, use precisely this phenomenon of behaviour being conditioned and controlled by attendant or resultant costs. Thus, if the cost of polluting a river or building an illegal structure was so high that only a fool or a reckless fellow would attempt to do so, the structure of the system itself would generate good environment friendly behaviour.

3 A premium on dishonesty is the chief distinguishing feature of the current climate; this serves very well the interests of all those who profit from such activity. What is not so clearly recognized is that it is a form of slow suicide for those who wish to remain clean and honest. Unless the latter plan speedy retirement from this world, they would do well to remember that in a scenario of limited resources and competing activity, those who join the ranks of the corrupt ( whether on the give or the take') have a powerful economic advantage, and will swiftly marginalise and edge out those unwilling to subscribe to such means. It is not a sufficient answer to plead the "nimby" (not in my back yard) and to say that one's hands are clean. This realization, and some enlightened self interest, should serve to reverse Edmund Burke's dictum that the good are indifferent and lack conviction, while the wicked are full of cheat, humbug and success.

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4 Allied to the risk of non -compliance is the need to improve the chance of detection of environmental offence. A variety of steps are needed for this. A good part of the answer flows from the doctrine of accountability, and its wider and more imaginative application . Just imagine - if officials of the Pollution Control Board were personally liable for granting permission to a polluting industry to continue operation, if Directors of the Boards of corporate bodies could be held personally accountable for acts of pollution which they knew or should have known about, if the same were to apply to heads of government departments which are carte blanche despoilers; in other words, if key actors or non actors had an inkling of a Damoclean sword on their heads instead of the blissful scot free feeling , we would see much better compliance.

5 Similarly, transparency is an excellent aid to compliance. Information regarding environmental risks, compliance with regulations, achievement of standards etc. needs to be in the public domain since the consequences affect the public. Given access to such information, and since, thankfully, we are a functioning democracy, we can expect the public to react - through letters to the press, public interest petitions to the Courts , demonstrations in the streets and so on. The advent of the information age with its accent on easy access to a wide range of data is a potent weapon in the fight to preserve the environment.

6 A word on public interest litigation. It's a recent phenomenon in the jurisprudence of the legal world, and one in which India has made breathtaking advances. It must be realized that it bears one of the chief features of a democracy - that its certainly for the people, and of the people - but, it must be also done by the people. The espousement of public causes, through litigation and otherwise, must receive the support of the community and of people at large; and such support must be expressed through participation and acknowledgment and financial contribution. Conventional governance expects public interest to be protected and advanced by those whom the State pays and maintains to do precisely this, viz. our politicians and bureaucrats and other holders of public office. One of the remarkable examples of the topsy turvy nature of our current world is how little we expect from our public servants, how least surprised we are by their acts of defalcation , and the almost universal cynical belief that public office is sought, held and conducted for monetary and selfish private gain. So defenders of the public interest must perforce be different from those conventionally referred to as public servants; we pay the latter but they do not protect us; and till we can set right this absurd state of affairs we should support those who take up cudgels to fight public causes. In my criticism of the low moral and ethical levels of current public personages, I do not intend to be sweeping or to generalize; there are several fine pedple holding public office, and holding out for values and norms and propriety against tremendous odds and pressures. I am thankful that

3these are still on the scene; my fear, however, is that, till reforms are set in motion, their tribe will not increase.

7 In a lighter vein, but not entirely in jest, I have often speculated on the power of the direct experience as a deterrent factor. For example, if somebody who indulges constantly in blowing his air horn on the roads were to be made to sit in a room and forced to listen to amplified sound till his eardrums are close to collapse, I wonder if that would not be a far more effective deterrent than what we have going today. How about subjecting those whose vehicles emit thick fumes of gaseous smoke to a few compulsory lungfuls of the stuff. Polluters of nearby wells to consume, as potable, water from the very same wells. Seems to me that its only a modern day application of an old adage " as you sow, thus shall you reap".