Responsibility of Judiciary towards biodiversity
Responsibility of Judiciary towards biodiversity
Dr. Amita Singh
The Asia Pacific Disaster Research Group (NDRG) organized an international Biodiversity Day lecture on the 22nd May. It was overwhelmingly attended by academia, policy and legal experts from several South and East Asian countries. Everyone was looking forward to hearing how biodiversity issues could unite and re-ignite bonding between India and its neighbours led by two eminent judges, Justice Gita Mittal (Recently retired as Chief Justice of J&K High Court) as the theme speaker and Justice Nasir Aslam Zahid (Former Judge Pakistan Supreme Court & Chief Justice Sindh High Court) as the Chair for the programme. Justice Nasir Aslam Zahid set the ball rolling by expressing his concerns for biodiversity degradation which is not attracting much attention of judges in Courts as much as it is required. There have been laws, Acts and institutions to conserve biodiversity at the global and the national level but an insufficient global and national response to enforce them is preventing action to safeguard it. Judiciary has a major role in providing sustainable development, justice to victims of natural disasters, ensuring right to a decent life and protection of fundamental freedoms affected by environmental destruction. Judiciary can assert itself in implementing Agenda 21 and strengthening the executive in promoting enforcement of environmental law and interpreting law to support long term solutions of nature conservation. Justice Nasir’s phenomenal work on providing access to justice to the underprivileged esp. to women and children helped him to start thePakistan’sLegal Aid Society in 2013. In his preliminary comments he warned that since approximately 75% loss of biodiversity has already occurred one need to find solutions in nature and nowhere else. Covid-19 pandemic is a moment of realization for governments to take action and an urgent concern for judges to facilitate enforcement through the use of powers and responsibilities bestowed upon them through the Constitution. Justice Gita Mittal was the obvious choice to deliver the Biodiversity Day lecture of 2021.Her role as a Chief Justice of J&K will definitely go down in the history of the region’s biodiversity conservation, an unforgettable poetry of law to infuse life into the dying lakes and shrinking biodiversity of a land described as ‘paradise on earth’ Justice Mittal has always been a judge sensitive towards environmental issues. In 2014 international meet on ‘Is Law Enough to prevent disasters?’ At NDRG, JNU Justice Mittal’s far-reaching work on recovering land from the land grabbers in Delhi when she was a Counsel for the DDA was discovered. Land is the first bio-resource, a habitat of several species which most policy makers and the judges fail to even acknowledge. To get an idea about it just visit the Jawaharlal Nehru University situated on a mere 1000 acres of land but has a biodiversity of more than 800 species of birds, jackals, wild cats, rabbits, porcupines and reptiles. Most of the 100 species of butterflies of Delhi are all inhabiting this small land of a university. Imagine, how much biodiversity could be restored by recovering land from illegal occupation of builders, hoteliers and developers around Delhi. She even pulled up the DDA and the Municipal corporations for de-congesting chemical industries from the central walled city areas in 2017 to save lives and restore health to people besides enforcing orders of the NGT and the Supreme Court. As an Acting Chief Justice of the Delhi High Court she has taken Suo motu cognizance on several occasions where government authorities have failed to act in compliance of directives issued towards restoring environment for the underprivileged to breathe clean air.As an acting Chief Justice in 2017 she along with Justice C Hari Shankar questioned sternly the three Municipal corporations of Delhi on accumulated garbage which was more than the land that Delhi has. The order resulted in the notification of the solid waste management bye-laws by the local bodies in Delhi, later replicated in J & K and Ladakh. She strongly rejected the local bodies’ demand for money as ‘will to work and not funds’are required to clean the city and in implementing the 4th Finance Commission recommendations. Her orders were strongly drafted and left little scope for non-compliance and non-enforcement. One of the most important judgements delivered by her has been in her capacity as a Single Bench Judge on constructions over the riverbed. It was her immensely insightful understanding and description of a riverbed that attracted attention of legal luminaries across the world. She brought justice to those who could not speak for themselves such as rivers, trees, animals and also those poor communities who have always missed out in being acknowledged. She carried this spirit to J&K where she started a unique program called ” Insaaf Ki Dastak” to connect to those unserved communities living in inaccessible villages and towns in the Union Territories of Jammu, Kashmir and Ladakh. She enabled them to file cases through Post Offices and other approved centers as well as setting up Camp Courts in different locations.Justice Mittal explained the conundrums judges encounter while delivering justice to the victims of environmental destruction and even though justice is not a mirage, yet people suffer a lot to achieve it due to ignorance and insensitivity of justice delivery mechanism towards environment and biodiversity. She activated administrative systems wherever she could. As a Chief Justice of J&K High Court, she held an einteraction with lawyers separately for those who had a standing of 15 years and those who were in courts for more than 15 years. This was to discuss pendency of cases and suggest measures to speed them up. No Chief Justice had ever thought of this form of communication to resolve pressures over courts and make available access to justice to the most underprivileged and geographically disconnected. In her Biodiversity Day talk she explained: “I had faced Delhi’s severe water crisis and Since then many celebrated judgements across the world have looked at the rivers as living entities and their riverbed as belonging exclusively to the river and not a free space to be used by developers of growth enthusiasts. I feel that judges need to look beyond the blackletter law and interpret it in a logic provided by ecosystem knowledge but will it be possible without their environmental sensitization. I cannot stop appreciating the boldness of Justice Kuldeep Singh and commitment of lawyer M.C.Mehta who were able to deliver some of the best environmental judgements that helped to protect the life, health, business and sustainability of development in Delhi and in the rest of the country.” As Chief Justice of the J&K High Court she brought massive changes in the protection of lakes and ecosystems. The J&K Dal and Wular Lakes were rapidly shrinking into a cesspool of sewage and were likely to disappear within a few years. Even though the High Court through an order in 2002 had taken over the Dal Lake under court protection as the state had failed to protect it, no progress had taken place over the last 16 years. A huge amount of funds had been wasted without effect. That’s when the HC through some proactive judgments took matters into its hands and passed some strong orders beginning in Sept 2018. She appointed a Committee of experts to investigate and study the lake ecosystem and suggest measures to be enforced. She herself visited these sites and achieved much progress in Dal conservation. First and foremost were the installation and renovation of Sewage Treatment Plants to abide by CPCB standards. The Dal boundary was demarcated through the Surveyor General and boundary pillars planted. She enabled the usage of AI and GPS technology to get a complete requirement for reviving life over the lake and in many instances even drones were used to record geo-referenced maps of all constructions. The land mafia grabbing the lake-bed and the rehabilitation site were stopped and their illegally made transactions were cancelled. This was almost an environmental revival revolution for Srinagar.This helped geo-tagging of saffron fields in and around Pompore through UNESCO by Govt of J&K with support from the appointed committee. The proposal to declare Dachigam and Dal as environmentally protected area finalised for seeking GoI approval. As a Division Bench of J&K High Court Chief Justice Gita Mittal and Justice Sanjay Dhar responded to a PIL and directed administration to immediately take necessary steps for removal of the encroachments within the boundary and vicinity of Wullar Lake and asked no construction activity shall be permitted or come up within 200 metres of the boundaries of the Wullar Lake. She unequivocally ordered to administration to ensure that no garbage is dumped within the boundaries or within such distance of the Lake as is mandated by the law as well as the International and National Protocols of the area. Every step in this regard shall be undertaken to ensure that there is no pollution of the Lake. No HC order had had such a strong impact on the conservation of the Lake. The Committee could take such a large number of issues to their logical end only through close working with the state administration, using the latest technology, getting expert support of many state and nonstate agencies, viz Indian Navy, Surveyor Genl, DRDO, IITs, NEERI, NGOs among others and above all the uncompromising support of the Chief Justice. She knew the power of the court but she also admits that much art goes in the manner a judge writes down an order. The language of the order is what determines the strength of conservation efforts which moves governments to implement and enforce laws and institutions in conservation efforts. (The author is President, Asia-Pacific Disaster Research Group, NDRG) feedbackexcelsior@gmail.com