‘We approach environmental cases like criminal lawyers’

Civil Society News, Gurugram

TAKE a good cause to court and what can you hope to get? Only as much as the law can give you. Even as concern over the environment has continued to grow, winning verdicts against offenders needs clever lawyers as much, or perhaps even more, than activists with heart.

Ritwick Dutta, 47, and Rahul Choudhary, 47, have the distinction of being both activists and savvy lawyers at the same time. They have won several landmark verdicts, one of the most significant being against the mining rights given to Vedanta in Odisha. 

The secret of their success in court is that they are diligent about separating the cause from the case. Using the fine print in rules and regulations, they have got the better of highly paid counsel and powerful companies.

Dutta and Choudhary were recently recognized with the Right Livelihood Award, or the ‘Alternative Nobel Prize’ as it is also popularly known, for defending the rights of people whose livelihoods and traditions are affected by projects.

When not in court, Dutta and Choudhary are campaigners who create awareness in communities about their legal rights in relation to natural resources. In this role as activists, they work through their trust, the Legal Initiative for Forest and Environment (LIFE). 

We spoke to Dutta in a long and freewheeling interview when they returned from Stockholm after receiving their award. Here is a small and edited part of that insightful conversation.

 

You are one of the country’s leading environmental lawyers. But very little is known about you and your partner, Rahul, and LIFE, your trust.

Let me be very frank, I had no great interest in law. I graduated in sociology from Delhi University and studied law so that I could get more time to think about what I wanted to do in life. An LLB gives you breathing space. Personally, I didn’t see myself becoming a litigation lawyer wearing a coat and gown and standing before judges. In fact, I didn’t enroll as a lawyer till 2001, which was all of two years after I got my law degree.

My core interest was, and remains, nature and wildlife. I started going to wildlife sanctuaries across India. As I moved around, it became clear to me that love for wildlife is linked to keeping the habitat intact. The animal is at risk due to poaching but  the wild animal’s home is at greater risk due to habitat destruction whether in the form of mines, dams and highways among other projects.

A lot of wrong things were happening across the country, at that time, since people weren’t going to court out of  fear — not of courts or judges — but of  lawyers. They are more afraid of lawyers than of the courts. The first thing they worry about is how much the fellow is going to charge. With lawyers, even a cup of tea costs money. As a result, even when violations take place in front of people’s eyes, and they are aware of them, they are reluctant to take legal recourse.

 

So, that prompted you to set up LIFE?

LIFE was a result of the realization that there is need for a specialized environmental law group in India — one that takes up different environmental issues across the country.

However, it is important to clarify that none   of the litigation we undertake is funded through LIFE, which is a trust for creating awareness among people about their environmental rights and undertaking research in areas concerning environmental law and policy.

 We also decided, as a matter of practice and principle, that we would only represent others. We would not file cases in our own names and never in the name of LIFE. That remains our basic motto.

There was hardly any organization on environmental law. We felt there was need for an environmental lawyer doing general practice in environmental law. We had lawyers doing tax matters, family matters and then 10 percent would be environmental law cases.

There were individual lawyers but very little specialization in the field of environmental law. You had people doing forests, pollution, wildlife and so on. We must have done close to 1,000 cases.
 

Yours, then, is perhaps the country’s first and only environmental law firm.

No, Sanjay Upadhyaya’s Enviro Legal Defence Firm (ELDF) is India’s first environmental law firm. The basic difference between us and ELDF is that we, as a matter of practice and principle, do not represent industry or the  government. ELDF represents industry, including those against whom there are allegations of environmental violations, and they are perfectly within their right to do what they think is best in terms of an organizational goal and mission. Our stand has been that we are environmentalists and, therefore, we cannot and do not  represent industry, the corporate sector or the government in any matter irrespective of the merits of the case.

 

How do clients approach you? Do they come to you? Do you go to them?

Multiple things are at work. There is a huge civil society network in India. A lot of them are aware of our work. They bring issues directly to us. There are networks that exist on forest rights,   on mining  and wildlife among others. Our many cases give us visibility irrespective of whether we win or lose.

One of LIFE’s core activities has been training and capacity building of communities and NGOs across the country. We make people aware of their legal rights vis-à-vis the environment. We don’t ask them to come to us, but this is one way in which cases do come to us.

We take fees in our individual capacity as lawyers but as an organization we only take funding for training and research. For litigation we urge communities to pay as per their capacity. If they don’t have the capacity to pay, then we subsidize them or, in some instances, do it pro bono.

 

How do you subsidize them?

We don’t quote any fees. We leave it to the community to decide. If they don’t have money, they give a declaration.

We give them three options. One, to pay the fees as they deem fit.  Second, for those who cannot afford to pay professional fees, we expect them to pay for at least the cost of litigation — court fees, photocopying charges etc. Finally,  those who cannot afford to pay anything, we ask them to give a declaration.

In my early days in Odisha I told the community I would appear for free. Their condition was such that I felt bad taking money from them. The villagers insisted on paying and, when I asked why, they said it was their experience that a lawyer who appears for free gets bought out by the other side! By paying they felt I would pick up their call and they would have the right to question me.

What we have managed to do is change the domain of environmental litigation from being the exclusive domain of NGOs or human rights groups to one where affected  individuals are the petitioners. We believe in the power of the individual.

Whether you look at the POSCO steel plant  or the Vedanta bauxite mine in Odisha or the hydropower project cases in the Himalayas, it is in most instances, the  individual farmer, fisherman or pastoralist who is the petitioner.   

The nature of litigants has also changed.  It is not always poor people struggling to eke out their living that need our help. Many a time well-off farmers involved in agribusiness or aquaculture also approach us since they fear loss of business due to environmental degradation. 

For example, we represented the Alphonso mango growers of Ratnagiri in Maharashtra. They are well-off farmers, mainly exporters. They said their exports would be affected if a coal-fired power plant came up within 15 km of their orchards. WTO standards say no exports to Europe if you have a power plant next to it. They gave us fairly good resources.

We also represented one Ali Hussain, a large aquaculture guy in Tamil Nadu who feared that a power plant would affect his business. At the same time, a lot of traditional fisherfolk were also opposed to it. The fees we get from a person who has greater financial capacity are used to subsidize those who are unable to afford the cost of litigation.

Rahul Choudhary and Ritwick Dutta in the field: ‘We are environmentalists’

How did you and Rahul come together?

We were classmates in the law course in Delhi University. Rahul I also worked with Colin Gonsalves whose practice was focused on human rights. While I was there, I worked on a 3,000-page handbook for environmentalists for which I had to carefully read a whole lot of judgments. It helped me acquire a thorough understanding of environmental law. Rahul and I launched LIFE in 2005 because we wanted to focus on the environment. We started in the barsati in my Noida home.

 

Your Vedanta case was a landmark case. Tell us about its significance and the learnings for you.

The Supreme Court’s judgment is significant because, for the first time in the Indian system, the aspect of referendum was applied. The court actually directed that it is for the gram sabhas in the Dongria Kondh tribal areas to decide whether mining should take place or not.

What is very important is the chief minister of the state approved the proposal for mining, the environment minister approved it and, finally, even the prime minister approved it. Yet the Supreme Court, relying on the Forest Rights Act (FRA), held that it still had to be placed before the gram sabha for its consent. This is democracy at work.

The judgement is significant for this issue. It places decision-making in the hands of the people to be affected most by mining. What is unfortunate is that the precedents of this case have not been followed in subsequent cases on mining, dams or other projects. The entire litigation took a decade.

Our learning was that environmental cases need to be fought on specific points in the law and not emotive issues. We argued that proper procedure had not been followed in the EIA.

The entire EIA did not mention the sacred nature of Niyamgiri. The EIA process requires cultural aspects to be taken into consideration, which are unfortunately ignored the most.

 

How did the case come to you?

The case came to me by accident. It was not even filed before the Supreme Court, but before the Central Empowered Committee (CEC), a committee of the Supreme Court. 

I had completed my law course a year earlier and I had no idea what Vedanta was. In 2002-2003 information available online was sparse. I thought maybe it was some holy company (given its name ‘Vedanta’)  having some business interest in Odisha.

It was Dr Sreedhar of the Environics Trust/ Academy of Mountain Environics, not the tribal community, and Mines, Minerals and People (an NGO) who asked me to take it up. The local community approached me later to represent their cause.

Honestly, it was not part of any great plan or ‘conspiracy’, as those in power would like to call it,  to either stop the mining project or  protect the tribal community. I was shown a patch of forest and told this would all get destroyed if mining were to take place.

I chose to approach the CEC simply because it was less intimidating.  It had, as its members, forest officials, IAS officers, conservationist Valmik Thapar and others. It was more approachable and for a young lawyer.  This is what matters the most.

I argued my case. On the opposite side were eminent senior advocates CA Sundaram and Mukul Rohatgi, among others. Thankfully, unlike present times when young lawyers have in-depth knowledge about lawyers and law firms, I didn’t know about their eminence and  so I had no fear. And we got the first injunction or stay against mining despite the array of senior advocates.

After that, the group representing the Dongria Kondh tribal community approached me to represent them also. Biswajit Mohanty of Wildlife Society of Odisha also filed his case through his own lawyers. That was when  I realized the close connect between wildlife, forests and tribes and that it’s possible to argue for all three.

The record is that since the CEC is a committee of the Supreme Court every recommendation is accepted by it. And the CEC gave a very strong report against Vedanta. We thought we would win the case.

But, in a rare departure, the Supreme Court did not accept the report of the CEC. The court decided to allow mining to happen.

We never let go of any opportunity provided by the law. Notwitstanding the negative verdict of the Supreme Court, we went ahead and challenged other approvals (such as the environmental clearance) granted to the project before another judicial forum — the National Environment Appellate Authority. We kept the fight going, notwithstanding legal setbacks.

At the same time, many other developments took place: Jairam Ramesh became environment minister, Rahul Gandhi said the case had become an international embarrassment for India and the Forest Rights Act of 2006 was passed by Parliament which recognized the rights of forest-dwelling communities to forest land.

The Supreme Court was left with no choice but to review its earlier decision allowing for mining and directed the mining company to seek the consent of the gram sabha under the FRA. Subsequently, all the gram sabhas opposed the mining. Niyamgiri,  the sacred hill, was saved.  Democracy and the rule of law triumphed.

 

You managed to halt a hydropower project in Tawang in Arunachal Pradesh. Stopping a hydropower project is tough to do.

In the Tawang case we basically used grounds which were more in terms of administrative law principles.  We approach environmental litigation like a criminal lawyer would approach a case.  What are the finer details that are missing? What is the critical omission that would render the whole project void?

In Tawang we found it in the Environment Impact Assessment (EIA) report which  did not take into  account the black-necked crane which was sacred to the Buddhist community  at Tawang.

There is a clear requirement in the forms for the EIA to state if the area is important from a cultural point of view. We had enough documentary evidence to show that this area is regarded as sacred because six or seven black-necked cranes, which are considered the embodiment of the Dalai Lama, come to the site for wintering  in December.

The scientists who did the EIA in summer could not have noticed the black-necked cranes because the birds come for wintering from China. They don’t come in summer. The scientists, on the other hand, found December too cold to be in Tawang!

We said this was an instance of concealment of information. The declaration, which one makes while submitting a passport application form where one states that every information given above is true and correct, is applicable in environmental law too.

In the form they filled up for Tawang the project’s developers  said there was no sacred place and no endangered species in the area. And they signed it.

Above it was written that the information provided is true and correct and if it is found to be incorrect at any stage the approval granted should be revoked at the project proponent’s risk and cost. It was signed by the managing director of the company. We invoked that provision. 

In most environment cases we do not approach the case as an environment sustainability issue.  We look for a violation of the process and a point in law. In the case of Tawang, we said the omission was a case of misrepresentation. The law says submission of wrong, false and misleading statements is a ground for revocation of approval already granted. We applied those principles.

The NGT said in its judgement that both the project proponent and the consultant did not disclose the presence of the black-necked crane which they ought to have. It said to do a fresh study looking at the concerns of the black-necked crane.

The NGT did not say that there should be no dam in that area. It directed the Wildlife Institute of India to do a  fresh study keeping the black-necked crane as the focal point. It further directed that the result of the study should be placed before the local community who will then decide whether the impact of the dam will be positive or negative and if they should go ahead with it. I am happy to state that the Wildlife Institute of India,  in its study, has said no to the project.

 

So, this means you have to be a clever lawyer and keep away from emotional and ideological issues?

Absolutely. Judges find it difficult to understand the significance of a black-necked crane. It’s not easy to explain it to them. You can’t go to the court saying you don’t like dams. You have to give legal
and scientific reasons why having a dam at that location is not a good idea and why it cannot be legally and ecologically permissible.
 

Gram sabhas are supposed to be consulted, but what we hear of are shoddy EIAs and dubious public hearings to clear projects. Now a further dilution of the process is taking place.

Many times, the issue of ‘saving the EIA’  is raised. I don’t think there is anything worth saving in the EIA process as it exists now. At the same time, there is no political will to bring in a system which allows for meaningful EIAs. The existing EIA regime allows everything to happen.

Let’s be clear. Ninety-nine percent of projects that come up in India do not need an EIA. For highways only 100 km plus require an EIA so almost all the highways coming up are 99 km long. This is achieved by splitting up projects.

All big buildings and construction coming up are below 20,000 square metres So, really speaking, we don’t have an EIA process in place today which can be called a scientific or community-driven process.

The new draft EIA notification has serious problems, but the existing one also has serious problems. The existing faulty process continues. The new diluted process is not going to make things better. In fact, it will make things  worse

We are stuck between a horrible process which exists today and a further diluted process which has not been allowed to come in, rightfully so.

Whether it is the earlier 1994 notification or the 2006 notification, the entire way in which an EIA report is prepared serves no purpose at all — either of informing communities or decision-makers. It reads more like a detailed project report on the benefits of the project.

The public hearing is only a consultation process. It is not a consent-driven process. You are supposed to listen but not to act. That’s how it has been interpreted.

The Expert Appraisal Committee (EAC), which is supposed to look into documents and the public hearing minutes, is not even fit to be called an expert body.

The mandate of the EACs, it seems, is to put a rubber stamp, which they are doing very effectively.  

The EAC for coal mining and power plants is headed by a person who is  on the board of a thermal power company. He has stated that his expertise is speedy approval of power plants and mining projects.

 The EAC for river valley and hydroelectric projects is headed by Professor K. Gopakumar from the Indian Institute of Science. There is no mention of river or environment in his CV. His expertise is in electronics, switches and switchboards.

We must not forget that the capacity of civil society and communities to challenge existing faulty EIAs is extremely limited. There is a right of appeal before the NGT once environmental or forest clearance is granted.

But, of the roughly 300,000 to 400,000 approvals granted in a year, the combined might of all civil society groups and communities has been on average to legally  challenge around  50 or 60 of them. The easy way to know that is from the number of appeals in the NGT.