2017 Taking Nature to the Courtroom (III), coordinated by Daniela Berti, CNRS-CEH and Anthony Good, Edinburgh University. Project funded by the Wenner-Gren Foundation->http://www.wennergren.org
2015-2016 Taking Nature to the Courtroom (I & II) : coordinated by Daniela Berti(CEH) in collaboration with Blandine Ripert, CNRS, CEIAS, Joëlle Smadja, CEH, and Raphaël Voix, CNRS, CEIAS). Project funded by the programme ’Dynasie’ (Dynamiques Asiatiques) of the PRES héSam ;
Context
Recent studies on development projects and the management
of natural resources in different regions of the world have highlighted the increasingly important role played by the courts in cases involving environmental protection. This trend has often been presented as the result of a judicialisation of politics, a process that Hirschl (2006) defines as ‘the ever-increasing reliance on courts and judicial means for addressing core moral issues, public policy questions, and political controversies’. In political sociology this process has been interpreted as an extension of the jurisdiction of the court at the expense of politicians or the administration (Commaille 2010 ; Kaluszynski 2006).
Couso et al. (2010), for example, showed how judges in Latin America have begun to put themselves forward in recent years as human rights defenders. The result is that today crucial political issues, such as conservation and resource management, take on legal forms. But use of the law to define the relationships that people have with their natural environment does not come only from the milieux of professional élites. Indigenist movements, as well as individual farmers, sometimes supported by non-governmental organizations, often turn to the courts to oppose projects put forward or approved by the government, that they consider as endangering their livelihoods or depriving them of rights they have previously enjoyed (Sieder et al., 2005).
This judicialisation of environmental disputes takes on special importance in India, due in part to the relative ease with which villagers can go directly to courts of appeal (especially the High Court) via writ petitions (requests for assignment). Numerous cases are pending in the country’s High Courts, sometimes for a number of years, which has led to the introduction of Green Benches within several High Courts and the creation in 2010 of a National Green Tribunal. This process, which in India was ‘driven by judges’ (Almirante 2012), has also been facilitated by the introduction in 1979 of the process of Public Interest Litigation (PIL), by which a member of the ‘public’ may plead to the High Court or the Supreme Court against the violation of a constitutional right, while not necessarily being a directly injured party in the case. This procedural innovation has permitted, on the one hand, the development of judicial activism, whereby judges can take the initiative and thus become defenders and promoters of environmental or ecological values, and on the other hand, has also allowed the economically disadvantaged to seek justice, merely by writing a single letter, to oppose practices or projects affecting the public interest. An example frequently cited in judicial circles in Himachal Pradesh, for example, is the case of Kinkri Devi, an illiterate peasant woman from an isolated village in the mountains, who had submitted a PIL to the High Court in that State in 1987, denouncing the harmful effects of illegal mining on the environment. Her action, supported by a local environmental organization, received wide coverage in the national and international press and contributed to the introduction of a number of measures to address the problem.
Although in some cases the arguments advanced before the court refer to modern concepts such as ecology, sustainable management of natural resources, environmental protection, and a scientific approach to nature, in other cases these discourses combine with religious arguments. This has particularly been emphasized in litigation involving Hindutva (right-wing Hindu fundamentalist) organizations, which use ecological arguments to fuel ideas of ‘Hindu culture/identity’ and of a ‘Hindu nation’ that would be threatened. An example of this transition from ‘nature’ to ‘nationalism’ (Sharma 2001) is found in the anti-Tehri dam movement in the western Himalayas, where since 1990 several environmental leaders have begun working in a more or less ambiguous way with Hindutva organizations (Mawdsley 2010).
Similarly with regard to protected areas, in some cases as in Assam, national park rhymes with nationalism, and environmental protection is used for political purposes, such as to justify the expulsion of foreigners, in this case Bangladeshi Muslims. The ‘purity’ of nature, in accordance with ecological discourses on the need to protect nature, is therefore highlighted. As shown in the book edited by Arjun Guneratne (2010), India’s environmental degradation has become a metaphor for the degradation of culture.
But the association between conservation and religious arguments does not always take a nationalist turn. Another form of combination between religion and ecology is found today in relation to the ’forests of the gods’ attested in several parts of India and Nepal. In the State of Uttarakhand, for example, temporary protected areas called ‘forests under the protection of the gods’ (dev arpit) have recently been created following ‘village councils’ (panchayats) decisions, with the explicit intention of regenerating parts of the forest. In other cases these ‘divine forests’ (van Devta) have more ancient origins and, while initially foreign to environmentalist discourses, they are now also presented as evidence of a kind of ‘spontaneous environmentalism’. Thus the WWF website in Shimla defines these ‘sacred woods’ as ‘reserves for flora and fauna’.
The project
Our plan is to organize three days of study focusing on how environmental issues and the relationship between ecology and religion take shape within the appellate courts, focusing on the study of trial processes.
Environmental issues and the relationship between religion and ecology have been extensively studied, especially in Indianist works. However, the originality of our approach lies in addressing these questions through the study of court cases, investigating the logic of legal files, and the discourses employed by actors in these petitions, both the official and legal discourses and their unofficial aspects. Although some cases, such as the Bhopal disaster (Baxi 1986) or pollution of the Ganges (Singhal 2012) have been analysed, we wish to focus our attention on less well-known examples, less national in scale, on more local situations which combine jurisdictions at different levels ranging from international law to customary rights.
Development projects and territories of the gods
These cases oppose villagers to the sponsors of works such
as dams, micro-hydro projects, tourist resorts, and so on, that are not only accused of harming the environment, but also of disturbing or destroying a territory that is considered to be inhabited by a deity or over which the deity as a ‘legal personality’ has property rights. This is the case, for example, with a proposed ski resort development in a Himalayan valley, against which a number of regional deities have repeatedly spoken, through their institutionalised mediums, to confirm their vetoing of the project. Another case involves the construction of a reservoir near a spring said to be inhabited by a village goddess. In these examples, the concept of ‘nature’ takes on particular importance. It becomes not only the object of a legal definition in the court but also in the discourse of the persons concerned, a question of ‘cultural and religious heritage’.
The ethnographic study of these cases will help us understand how the courts seek to manage the tension between development policy pursued by the state, and the resistance of a section of society opposing some government initiative on behalf of the rights of their deities, and respect for their ritual practices. This tension is likely to intensify in the coming months, given that the new Indian government decided in August 2014 to accelerate the implementation of all these projects, most of which have been pending for years in court.
Protected areas and people’s rights
While in the case of dams (or other development projects) it
is a matter of controlling nature, in the case of national parks or ‘wildlife reserves’ the idea is, on the contrary, rather to protect it by isolating them from all human presence and prohibiting any human activity. The creation of these parks raises problems of the same order, however, and numerous trials have followed their creation in the 1970s : population displacement ; damage suffered by those populations in relation to their implementation (destruction of crops, livestock and sometimes people by wildlife) ; lack of profits from their cultivation.
Our focus will be particularly on how the Forest Rights Act 2006 – guaranteeing local people their rights over forest land – is being used in the opposite way in cases of population displacement (dams versus national parks). We are also interested in the categories and classifications employed by the various actors involved in such trials, on the basis of which compensation for damages will be awarded. In India, in the case of protected areas covered by Project Tiger, for example, eligibility for damage compensation depends on how wild animals are classified ; therefore, damage caused by tigers attracts compensation, but not that caused by leopards
The ethnographic study of these cases, which take the form of PILs or writ petitions, will allow us to analyse the multiplicity of arguments put forward by protagonists – villagers, village gods/mediums, local politicians, foresters, activists, journalists, lawyers, judges and legislators – and investigate how the same types of claim are conducted in different contexts. Thus, the same actors can on the one hand put forward ‘ecological’ arguments to oppose the construction of a dam (or other project), and when a protected area is being established, can challenge these same arguments in the name of their usage rights.
Animal rights’ and religious reforms
Another type of litigation which judges are now called upon
to adjudicate concerns lawsuits that seek to reform ritual practices considered to be at odds with certain ideals of modernity. This was the case for example with a judgment rendered recently by the High Court of Himachal Pradesh in which it was decided to ban animal sacrifice throughout the state. This was not a matter of protecting an ‘endangered’ species, but of denouncing the ‘cruelty’ inflicted on these ‘poor innocent creatures’,where sacrifices were presented as ‘evil customs in a society of the computer era’. This decision was not accepted by the managers of village temples who, after having consulted the gods on the issue through their mediums, decided to appeal to the Supreme Court.
These questions over the legality of animal sacrifice (whether goats, cows or buffalo) arise in different terms depending on the state involved and which religion is in question (Islam, Hinduism, Christianity or Buddhism). A comparison of the arguments used by the complainants (animal rights, wildlife act, prohibition of all ‘cruelty’) and the answers given by various Indian courts (a total ban ; a ban on public sacrifices ; a general ban with exceptions for certain periods) will allow for a better understanding of the plurality of logics at work in these debates.
These tensions between ideals – of secularism, modernity, or religious reform – and ritual practices do not always oppose élites to peasants, because the advocates and opponents of sacrifices are drawn from both categories. However, they require the bringing in of ‘legal experts’ to translate ritual procedures into legal categories, to define the religious or secular nature of a particular concept, or to separate what is essential in religion (in which they cannot interfere) from what is susceptible to treatment by the court.
Other similar issues we would like to address in our study days concern broader disputes about the status of ‘ritually protected’ animals, be they elephants in temples, monkeys in public buildings, or cows in cities.
For each of these days, we want to invite French and foreign researchers working on these issues as well as an Indian judge and lawyer with whom we will organize a discussion around our field examples.
Although we intend to build on the work already done by some of us in an ANR called Just-India, which ended in 2013, this is a new research group in terms of both its theme and the make-up of its members. The proposed project is exploratory for the time being and may perhaps lead to the formalization of a larger-scale team.
Bibliography
Aggarwal, Safia, 2010, "The role of religion in religion in conservation and degradation of forests : examples from the Kumaun Himalaya", in Arjun Guneratne (ed), Culture and the Environment in the Himalaya, 132-150, Abingdon, Oxon, Routledge.
Almirante, Domenico, 2012, "Environmental Courts in Comparative Perspective : Preliminary Reflections on the National Green Tribunal of India", Pace Environmental Law Review, 29, 2 pp 441-469.
Baxi Upendra , Amita Dhanda, 1986, Valiant Victims and Lethal Litigation : The Bhopal Case, Indian Law Institute, Publisher, M.M. Tripathi.
Commaille, Jacques, Laurence Dumoulin, et Cécile Robert, 2010, La Juridicisation Du Politique. Droit Et Société, Paris, LGDJ.
Commaille J. Kaluszynski (dir.), 2007, La fonction politique de la justice, La Découverte, coll. « recherches », 327 p.
Couso J., Huneeus A., Sieder R. (eds), 2010, Cultures of Legality : Judicialization and Political Activism in Contemporary Latin America, Cambridge, Cambridge University Press.
Galanter Marc, 1986, "When Legal Worlds Collide : Reflections on Bhopal, the Good Layer, and the American Law School", Journal of Legal Education 36, pp. 292-310.
Guneratne Arjun (ed.), 2010, Culture and the Environment in the Himalaya, Abingdon, Oxon, Routledge.
Hirschl Ran, 2006, "The New Constitution and the Judicialization of Pure Politics", Worldwide Fordham Law Review, 75, 2. http://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=4205&context=flr
Mawdsley, Emma, 2010, "The abuse of religion and ecology : the Vishva Hindu Parishad and Tehri Dam" in Culture and the Environment in the Himalaya, Arjun Guneratne (ed), 151-165, Abingdon, Oxon, Routledge.
Nanda, Meera, 2005, "Hindu Ecology in the Age of Hindutva : The Dangers of Religious Environmentalism", in The Wrongs of the Religious Right. Reflections on Science, Secularism and Hindutva (Three Essays Collective), New Delhi, pp. 67-91.
Sharma, Mukul,2009, "Passages from Nature to Nationalism : Sunderlal Bahuguna and Tehri Dam Opposition in Garhwal", Economic and Political Weekly (EPW), 8, pp 35-42.
Singhal, Ashish Kumar 2012 “Legal Case on Ganga Pollution and Judicial Activism”, Journal of Applied Sciences in Environmental Sanitation, 7 (1) : 61-64
Sieder, Rachel, 2010, "Legal cultures in the (un)rule of law : indigenous rights and juridification in post-conflict Guatemala" in Cultures of Legality : Judicialization and Political Activism in Contemporary Latin America, Couso J., Huneeus A., Sieder R. (eds) pp. 161-181, Cambridge, Cambridge University Press.