Unconscious evolution of Earth Jurisprudence: Analysing India’s disparate efforts at enforcing corporate accountability

Noble attempts at granting legal rights to ‘nature’ without acknowledging that in most cases, the entity against whom the latter will be claiming damages from is likely to be a corporation, is a myopic stand to take.

One may ask - is it possible to manoeuvre environmental concerns within the periphery of trade and investment liberalisation by enforcing corporate accountability? Perhaps, yes. However, the difficulty in treading this terrain lies in the ‘multinational’ nature of most enterprises that are responsible for their significant contribution towards climate crisis. Given the fact that these enterprises operate across countries, it becomes challenging to discern which State possesses territorial jurisdiction to prosecute them for their negligence. “Jurisdictional arbitrage” or “forum non conveniens” make for convenient weapons often wielded by multinational enterprises that allow them to circumvent facing consequences for their actions.

In 1972, American legal scholar Christopher Stone suggested a previously implausible concept that is largely credited to a small branch of the now mammoth and well-known tree called as ‘Earth Jurisprudence’. The term Earth Jurisprudence may be understood as a confluence of environmental rights and legal personhood, and is said to have been first coined by Thomas Berry in 2001. Stone had initially argued that trees, rivers, forests and nature at large be granted legal rights.

‘Legal personhood’ or ‘juristic persons’ is a concept that does not exist outside the periphery of law. In other words, it is legal fiction, similar to how literature has magical realism or historical fantasy. It is a tool created by legislators or courts that treats non-human entities as ‘persons’ in the eyes of law. In that sense, the concept allows said non-human entity a collection of rights and duties that can be reasonably expected from a human person. The statement is a nod to the constantly dilating landscape of legal fiction. Across the globe, there are some non-human entities that have been deemed “juristic persons” such as corporations, animals, rivers etc. India has charted a similar path, and her repertoire includes idols, temples, societies, trusts, nature and corporations within the ambit of ‘legal persons’.

More in congruence with Stone’s notion of 'Rights of Nature’, the High Court of Uttarakhand granted legal personhood to the rivers Ganga and Yamuna. The judgment is currently pending appeal and its operation has been stayed by the Supreme Court of India. Similar to Stone's argument that natural objects be empowered to seek redressal of violations of ‘rights’, this judgment had empowered the Advocate General of the State to act as ‘guardian’ of both rivers and plead or petition its interest before a court of law. Religiously inclined yet environmentally altruistic, the judgment notes:

“A juristic person, like any other natural person is in law also conferred with rights and obligations and is dealt with in accordance with law…Accordingly, while exercising the parens patrie jurisdiction, the Rivers Ganga and Yamuna, all their tributaries, streams, every natural water flowing with flow continuously or intermittently of these rivers, are declared as juristic/legal persons/living entities having the status of a legal person with all corresponding rights, duties and liabilities of a living person in order to preserve and conserve river Ganga and Yamuna.”

At the heart of Berry’s philosophy lies the acceptance of Earth-centric laws as opposed to the anthropocentric ones that we currently boast of. In a landmark case on wildlife protection, the Supreme Court of India is quoted to have cautioned against anthropocentric laws in a petition seeking court intervention regarding a second home for the Asiatic Lion to ensure its protection from extinction. Terming the issue as eco-centric, Justice KS Radhakrishnan opined:

“Anthropocentrism is always human interest focused thinking that non-human has only instrumental value to humans, in other words, humans take precedence and human responsibilities to non-human are based benefits to humans. Eco-centrism is nature-centred, where humans are part of nature and non-humans have intrinsic value. In other words, human interest does not take automatic precedence and humans have obligations to non-humans independently of human interest.”

Over the years, courts in India have acted upon letters and appeals written by citizens in the form of writ petitions under Article 226 and Article 32 on environmental concerns. The National Green Tribunal (NGT), a statutory but quasi-judicial authority, has been sporadically imposing steep penalties on corporations under the ‘Polluter Pays Principle’. The most astonishing one thus far was when Volkswagen India was held liable for a fine of ₹500 crore. The German automobile manufacturer was found to have been using a “cheat device” in its diesel cars that had a detrimental effect on the environment. The initial penalty was an estimated ₹171.34 crore as proposed by the Central Pollution Control Board (CPCB), which was later increased by the NGT on account of Volkswagen’s non-compliance with an order directing the fine be deposited within the prescribed period.

Stone had argued that damages, when claimed through a guardian for the ‘natural object’, may be utilised in a fund that could be made “available to preserve the natural object as close as possible to its condition at the time the environment was made a rights-holder”. Unconscious of how squarely conforming the NGT’s directive on Volkswagen was with Stone’s theory, the order mentions that the damages received can be used to “improve air quality of the National Capital Region and other highly polluted areas”. Yet, the order by NGT has been stayed by the Supreme Court and is pending appeal.

In May 2021, the National Thermal Power Corporation (NTPC), a public sector undertaking (PSU) owned by the Government of India, was fined ₹58 lakh for damaging the environment and the penalty was upheld by the NGT. NTPC, however, moved the Supreme Court against this order. The matter is still pending before the apex court, having last been listed in February 2023.

India recently enacted a policy directive called Extended Producer Responsibility (EPR), erected on the threshold of the “Polluter Pays Principle”. Proposed by the Organisation for Economic Cooperation and Development (OECD), EPR places the liability on the producer of a plastic for the damages it causes throughout its life cycle. At its heart, EPR is a waste management strategy that imposes a ‘post-production’ liability on Indian producers, importers and brand owners of plastic packaging, as well as plastic waste processors for the “end of life disposal” of plastics. As is the case with most Indian regulations, reportage on compliance with said guidelines remains scant.

In India, environmental jurisprudence is the celebrated nephew of its reclusive aunt, Natural Law, which operates from behind the curtains of almost all landmark environmental law cases. Indian courts have made significant strides in transforming elements of Earth Jurisprudence into solutions for environmental and climate crisis. However, its execution remains elusive. Scholars have previously cautioned that with the advent of countries granting nature legal rights, “a critical first step” had been taken towards environmental protection. But the extent to which we can stretch its fabric to hold corporations responsible for violating nature’s rights remains to be seen. Climate crisis is a candle that burns at both ends. Corporate accountability might just be the fire blanket that prevents it from burning the whole house down.

Aaliya Waziri is an advocate practicing at the High Court of Delhi.