New Delhi: On 29 September, the Delhi-based Legal Initiative for Forests & Environment (LIFE) was named for the 2021 Right Livelihood Award, often called the alternative Nobel Prize. Over the past five decades, the award has gone to several environmental defenders in India—including the Chipko movement of the 1970s that saved trees in what is now Uttarakhand, the Narmada Bachao Andolan of the 1980s that agitated around displacement and ecological damage caused by big dams, and the Land for Tillers Freedom group that worked for land rights in Tamil Nadu—thus recognising the deep links between environmental protection and social justice across the subcontinent.
Since its founding in 2005, LIFE— with a multidisciplinary team of 21 staff, including lawyers, environmental scientists and researchers —has been at the forefront of environmental litigation and jurisprudence in India, with a majority of its clients constituting communities at the receiving end of projects that harm the environment, health and their livelihoods, often pushed through by breaking the law and running roughshod over their concerns.
The award citation lauded LIFE for deepening environmental democracy by assisting and empowering communities to “fight against some of India’s most significant environmental threats: the construction of ecologically destructive projects in violation of the law, preventing deforestation, and making industrial polluters pay for the damage caused to the environment and public health”.
First presented in 1980 in Stockholm, Sweden, the Right Livelihood Award has 186 laureates from 73 countries, raising their profile, popularising their solutions and protecting them when lives or liberty are endangered. It is funded by private donors and foundations.
LIFE’s co-founder Ritwick Dutta, 47 spoke to Article 14 on two decades as an environmental litigator, the many hurdles to environmental justice and the experience of working alongside grassroots petitioners in a country plagued by inequality and environmental crises.
What does the Right Livelihood Award mean for LIFE and your work?
We are very happy to get it because we were never expecting this award to come to us. Also what is very important for us is this term ‘right livelihood’, because that encapsulates what we fight for. Many times people dismiss us saying ‘oh these environmentalists’—it’s a negative term in many ways. And we get bracketed. But we have been fighting for fisherfolk, farmers, forest communities. Almost 90% of our litigants are those whose livelihood or culture depends on the environment in that area.
Secondly, we have never really advertised LIFE as a group. We have always focussed on the people we represent. This includes two Goldman Environmental Prize winners, Prafulla Samantara (an environmental activist in Odisha) and Ramesh Agrawal (an environmental activist in Chhattisgarh), and a Magsaysay awardee Sanjeev Chaturvedi (a serving Indian Forest Service officer). So, we hope this award will help attract more talented and committed people to support this work. Because protecting the environment requires a long term commitment and many more need to join the effort.
Why did you become an environmental lawyer?
I did not really plan this. I have always been passionate about wildlife conservation. After studying Sociology and Law, I worked initially with groups like Worldwide Wildlife Fund, looking at issues of wildlife crime, doing a survey of national parks and sanctuaries, and then with (lawyer) Colin Gonzalves in the Human Rights Law Network. But I was less of a litigant and more of a person who was moving around the country trying to understand issues, and I saw so many environmental violations wherever I went… there was no dearth of issues, every single place you needed to take up issues. I realized then that there is scope for judicial intervention. And one of the opportunities that was provided in this time was the setting up of the Central Empowered Committee, (the CEC) of the Supreme Court in 2002, saying that any person can approach the CEC by filing an application with regard to any matter that concerns the implementation of the Wildlife Protection Act and the Forest Conservation Act.
This is how my first case came around October 2002 from Gujarat’s Shoolpaneshwar Wildlife Sanctuary, where authorities were allowing the removal of bamboo to meet the requirement of a paper mill. But tribals are not allowed to take anything from the wildlife sanctuary area, and a group working there with forest-dwellers approached me and said this is injustice. So, I challenged that before the CEC and within 2 days, I got an order stopping the removal of bamboo from the sanctuary. After that, I did my second case relating to a construction of a bridge and a road inside the Achanakmar Wildlife Sanctuary (in Chhattisgarh) for a group called Bilaspur Nature club, and we got an immediate order. And across India, some of these wildlife cases started coming in.
There were very few environmental lawyers in India at this time—M C Mehta, Sanjay Parikh—and even they took on a very small number of cases. So this is 2002, when it took Rs 40-50,000 to do a case, from the beginning to the end. I did my calculations. And what I found was that if I concentrate on the CEC, my total cost from xeroxing documents to going to the CEC office and filing the case would come to about Rs 1,000. And if I managed to actually charge something like Rs 4,000 to 5,000 from people and do the whole case, I would be able to file at least 10 cases at the cost of one case. So that’s how I started off and between 2002 to 2004, I would go there. And initially, I was the lawyer, I was the clerk. So I used this forum to take up a large number of cases relating to wildlife.
Somewhere around 2004 some environmental activists came to me and said can you take up the Niyamgiri matter (a proposed bauxite mine by the transnational corporation Vedanta in Odisha’s Eastern Ghats inhabited by the vulnerable Dongaria Kondh tribe). So I decided to take up the matter and it was very new for me because it showed me a way in which the community protects and respects the forest.
And at that point of time, internet access was very limited. I had no idea what I was getting into. I thought Vedanta must be a very small Orissa-based company. And I never took law as a subject very seriously as a student. I was a guy who hardly attended classes at all. So, when I landed up in CEC for the hearing, opposite to me were [corporate lawyers like] Mukul Rohtagi & C A Sundaram. Right. And I had to argue the matter. And the good thing was that I did not know who they were. So, I argued with full evidence and confidence, without any consideration, of who they were.
I recollect the famous example of Jim Corbett. You know, when he says that the favourite food of a lot of leopards is dogs. And he had a Lhasa Apso. And one day, the Lhasa Apso saw the leopard, and it chased the leopard, because it didn’t know what a leopard was. And the leopard also got confused, because it had never seen a Lhasa Apso.
And overnight, I realized, this is a very big matter. And so there was a transformation from being a lawyer for wildlife issues to taking up these big cases.
And slowly the Vedanta case taught me one very important lesson: that if you want to save wildlife, if you want to save forests, you cannot use only wildlife grounds. And second, you cannot rely only on wildlife conservation organizations. I was already associated with groups like WWF, Wildlife Trust of India and others. And very frankly, I found that there was a mismatch in what they were saying and what they were doing, because there was too much focus on the individual animal, and very little focus on the habitat.
The threat is not just poaching. While that remains a big problem, what is happening in India is that the entire habitat is getting diverted.
How did you come to found LIFE at this time?
Around this time Vimalbhai (the environmental activist working with communities in Uttarakhand adversely impacted by big dams) approached us for challenging clearances for the Kotli Bhel hydroelectric project in Uttarakhand. And I extensively worked with him and started developing my understanding about hydropower projects, and realised we have to move to a different forum. We started targeting the National Environment Appellate Authority. It actually gave a right to every citizen to challenge a project. And yet nobody was approaching it. We challenged clearances for hydropower projects in Uttarakhand, North Bengal, Sikkim, projects on the Teesta river. And when we approached them, we found that the entire body which had to have judges was filled up by retired Forest Service Officers and Indian Administrative Service Officers. They had no interest in the subject. And they continuously kept dismissing our cases. But we did not give up and continuously kept filing cases before the NEAA saying it is our statutory right.
This is the time when (colleague and co-founder) Rahul Choudhary joined me and LIFE was founded, as we started going before the NEAA regularly, and came to represent a range of environmental groups and affected individuals across the country, from Bengal to Chhattisgarh to Orissa to Tamil Nadu. We were challenging big interests on their behalf— mining companies, thermal power plants, ports.
And between 2005 to 2009 we formed a reputation that is unmatched by any lawyer in the country or perhaps the world: we lost every single case.
We would stand there, argue for hours, and the order would be that ‘you don’t have any locus standi.’ ‘Or you have come late and we don’t want to intervene.’ So we lost every single case. All in all we must have lost close to 70 to 75 cases. We would file, they would dismiss. We would file, they would dismiss.
And between 2008 and 2009 when the Delhi High Court was hearing the matter, overnight a change came about in the NEAA. The first ever clearance to be quashed by the NEEA was the Polavaram dam because no public hearing had been held in Odisha and Chhattisgarh. In Sompeta (Andhra Pradesh), where two fishermen had died (after police fired on fisherfolk opposing a proposed thermal power plant) they held a special hearing and quashed the project. Then the Lafarge cement plant in Himachal, a very, very destructive project—the NEAA came in and stopped it (on the grounds that livelihood and environmental impacts were not considered while giving clearance). And this change happened because they realised that we are not going to give it up.
And we realised that this is the area we want to work on—challenging clearances, representing people. I would say one of the most important achievements of LIFE is that we have never been the litigant, the litigant has always been a member of the community. And we have changed the narrative of environmental litigation from being the domain of environmental NGOs to becoming about an affected person who is directly coming and challenging things.
Why has working with communities been important for LIFE and how has it informed your work in the area of environmental justice and litigation?
It is a matter of principle for us, as well as a practical consideration because of our limitations. We are a small team and cannot have a first-hand understanding of all the issues on the ground across such a big country. So that knowledge that the petitioners bring is the basis of our litigation—every single (piece of) ground information is given by them. When we are representing, say the apple growers in Kinnaur, they tell us what is the impact of floods, and how it is impacting apple growth in the area. I fought for them for 5 years and they gave me the information as to how two so-called run-of-the-river projects are going to devastate their livelihood source. So, they teach us.
Similarly, when we take up cases of coastal communities around a port project, they give us the calculation of what is a fish landing center, how the fish catch has been affected because of a construction of a breakwater 11 kilometres away. These are essential information that will come from the community itself which we then try to translate to the best of our ability. One of our major constituencies now are the fisherfolk. You have the report of the ministry of earth sciences talking about the catastrophic impact of climate change on the coastal areas of India. And, yet, you want to build all this big coastal infrastructure in the country. Well, why should that Rs 30,000 crore not go for education, health and other such things, and why are we putting such infrastructure which will be doomed in the coming decades?
You mentioned that 90% of your litigants are those whose livelihood or culture depends on the environment in that area. What are the hurdles they, and you, encounter while trying to access justice?
There are huge hurdles when it comes to affected people accessing justice. Look at the law itself. One of our greatest disagreements with Jairam Ramesh (the then environment minister) was that the NGT Act gives you 90 days to file an appeal, and this is very difficult for people involved. But the right to life does not lose its meaning after 90 days. A project takes five to seven years to build. The destruction they face is permanent, but how do you say that your right to life extinguishes because you have failed to come within 90 days?
Then there is the question of how we can play a role when the community comes to us. Unfortunately the court is not interested in say, whether someone wants a mine or not. In fact the tool that is virtually of no use is the constitutional right—Article 21 (right to life), Article 14 (right to equality)—or even the precautionary principle, public trust doctrine, none of which is seen by the court. The sad reality often is we have to look at a horrible document called the EIA (Environmental Impact Assessment) and see what is in it, and argue around low-hanging fruit. Because what the court takes up is a violation of a statutory provision, and technical principles of administrative law, duty to give reasons, not application of mind.
It means so much processing that very few projects are challenged. Not more than 0.5% of the lakhs of approvals given in this country are challenged. Out of this, almost 30% of the challenges are dismissed saying you have come late. If you come ‘on time’, they will say who are you? In the case of Kusmunda (coal) mines (in Korba, Chhattisgarh), the NGT dismissed it saying you are not residing in the mine area. If you challenge it from the mine area, they say you have a vested interest. The hurdles are so many. If we cross all these hurdles, and get a favourable judgment in 10% of the cases we file, that feels like a miracle.
But, then, in most of these cases where you do get a favourable order, the Supreme Court overnight stays it. For example, we got a good order from the NGT when we fought on behalf of the fisherfolk against Adani for setting up oil storage facilities on the (Chennai) coast (without the requisite clearances and violating the coastal regulation zone rules). Within 15 days, the Supreme Court stayed it. We have seen in cases like from Chhattisgarh’s coal mining areas, there is great pressure on communities to withdraw when it comes to issues of paying compensation for environmental harm caused to them. So these are the many hurdles communities face. Every system is hell bent on ensuring that they do not get access to justice.
What has the past decade been like, post the formation of the NGT, even as India’s environmental crises deepen?
In these 10 years, the NGT has become a limping authority with many vacancies… but still it provides people with an avenue. This decade has seen increased awareness and legal action by environmental groups, citizens and others. When the NGT started in 2011, 90% of the cases filed were by LIFE. Today we are down to about 4% to 5%, which means many more lawyers across the country are raising some very substantial issues and doing excellent work. The jurisprudence with regard to compensation and restoration has evolved in India. So, now, for example, it is possible for people and communities to go and hold the polluter responsible. There is at least a talk and discussion and some action to reforming the pollution control boards. Systems like benefit sharing whereby companies are required to share a part of their profit are evolving.
However, across India, right from Supreme Court to High Court, to NGT, judges have become very conservative when it comes to legal challenges to big projects. 10 years back we got an order from the NGT suspending the clearance for POSCO. Environmental clearance for the Aranmula airport in Kerala was cancelled.
Now they are trying to protect the money, or investments made, or a lifestyle. They will not look into the livelihoods issue or what is being lost at all.
The overall discussion of law is very limited, and they are trying to do a very difficult, and I would say illegal, act of balancing. It is not the job of the judges to do this so-called balance between ‘Environment’ and ‘Development.’ Their only role is to look at the legality of the decision.
But unfortunately, over the last 10 years, their willingness to question illegality has been going down as the scale of the project and the amount of money invested goes up. Maybe they are willing to consider illegality when it comes to a stone crusher. But when it comes to an airport, a highway, a mine, suddenly you have the vague concept of ‘public interest’, ‘economic growth’ and the most dangerous word ‘sustainable development.’ I don’t think any judge in India has understood sustainable development.
There is also a problem of training and orientation. For example (in the NGT) you might have a retired forest officer whose whole professional orientation might have been to treat everybody in the forest as ‘encroachers’. Now that person is being asked to look at the plight of forest dwellers and it becomes a problem. And there is a tendency to surrender to the government, to say ‘experts have looked at it.’ But the expert must also understand what is equity, what is justice, what is law. So we have lack of orientation, we have lack of knowledge, and overall it often seems like a case of judicial surrender when it comes to bigger issues, and a complete unwillingness to question the executive.
This is totally out of sync with the challenges we face, and the demands of this era of climate change. India is very much in a deep environmental crisis today and first and foremost, we must recognize that we have to do away with our previous notions about environment and growth as many of these are problematic. If tribals cut 1 tree, they become a mujrim (criminal), but if thousands of trees are cut, it is lauded as ‘development’.
We are reducing all our environmental problems to numbers, or ill-conceived tree planting targets, or obsessing over a single species like the tiger as a stand-in for the entire ecosystem. We are not looking at quality of life. We are not looking at the rights issue. We are not looking at the denial of participation. All our efforts today should be put into saving whatever we have left. And this will take people from all walks of life to join in and make a long-term commitment to protecting the environment.
