- The Madurai bench of the Madras high court recently invoked the doctrine of parens patriae and declared “Mother Nature” to be a “living being”.
- Parens patriae acknowledges the state’s power to act against a bad-faith caretaker and in favor of the individual – human or non-human – in need of care.
- Neither court nor government has grasped what ‘sustainable development’ means, but have created an ‘imagined order’ around it to sustain what they need it to mean.
- The doctrine of parens patriae is a piece of this construction: it is too abstract to make a difference to day-to-day decisions concerning the environment.
There has been a sense of euphoria among those concerned about the environment, particularly over a recent judgment of the Madurai bench of the Madras high court that conferred legal rights on “Mother Nature”.
The high court invoked the doctrine of parens patriae and declared “Mother Nature” to be a “living being”. Parens patriae is Latin for “parent of the nation”. It acknowledges the state’s power to act against a bad-faith caretaker and in favor of the individual (human or non-human) in need of care. The judgment stated that “Mother Nature” should enjoy the status of a legal person, with all the corresponding rights, duties and liabilities.
Justice S. Srimathy, who authored the judgment, also said that “Mother Nature” would be accorded all the rights due by law to a person for their survival and sustenance, including their fundamental, legal and constitutional rights. Finally, the court directed the government to protect “Mother Nature in all possible ways”.
As it happens, this judgment was not pronounced in an environmental case or even a public interest litigation case, as one might expect. Instead, the matter concerned the consequences for a government employee who had been found guilty of illegally granting land rights to forest land. The employee had been forced to retire and the court was considering whether that penalty was just and proper.
The law prohibits grant of any patta on forest land, but the employee – a tahsildar – had granted it on orders from his higher officials. The high court negated these contentions and held that the “plea of the followeder petition, that he had the orders of the higher officials, cannot be accepted since the petitioner [has] a duty to protect the forest land.” The court directed that his increments be withheld for six months, with the money ‘saved’ thus awarded to the petitioner. According to the court, “This punishment is imposed for the act … against Mother Nature”.
In the court of this verdict, the high court made some important observations on environmental jurisprudence, the state of India’s environment and policies, and actions to mitigate the impact:
In India, protected areas (like national parks and sanctuaries) notified under the Wild Life Protection Act 1972 occupying less than 5% of India’s geographical area. In fact this 5% provide ecosystem services to human survival. Rest of 95% of India’s geographical area is available for humans. In spite of the same, it is unknown why the human is so desperate to intrude in the said 5% area. The indiscriminate activities in the said 5% area are causing huge damage, which is irreversible.
The few remaining original forests – our biodiversity treasury – are being destroyed to make way for huge mines or dams or lucrative real estate projects. And we attempt to pacify the destruction with the words like ‘compensatory afforestation’ and it is like giving sanction to kill all wild tigers and replace them by farming the same population in captivity, which is absolutely against “Nature”.
Under the guise of sustainable development, the human should not destroy … nature. If sustainable development finishes off all our biodiversity and resources, then it is not sustainable development, it is sustainable development. The phrases like ‘sustainable development’, ‘the polluter pays’, ‘the precautionary principle’ shall not be allowed anymore.
What has been quoted above is only obiter dicta – observations with no binding value – but they are nonetheless very pertinent. If we can’t meet our economic growth with 95% of our land, what could opening up the 5%, in national parks and sanctuaries, do to help? Is compensatory afforestation an answer to all ecological destruction? Can an abstract concept such as ‘sustainable development’ become license to plunder nature?