The 'chilling effect' of Ritwick Dutta's case could stifle the fight for environmental justice

I spent the morning of the April 22 in debilitating disbelief. After all, it’s not often one comes across news of the Central Bureau of Investigation (CBI) initiating criminal proceedings against one’s former employer. Especially when that former employer has spent nearly two decades of their professional life defending the rights of marginalized communities and furthering the cause of environmental justice in India.

In 2005, Advocate Ritwick Dutta, along with Advocate Rahul Choudhary, established the Legal Initiative for Forest and Environment (LIFE), a public interest environmental law group that aimed to protect vulnerable communities and strengthen India’s climate resilience. In 2019, as a fresh law graduate with an almost quixotic desire to utilize my LL.B. degree to help ‘save the planet’, I could think of no better place to cut my teeth than under the tutelage of Dutta and Choudhary.

Since its inception, the law group has has stood out as one of the organizations dedicated to litigating for the environment. This dedication has led to Dutta and Choudhary being involved in path-breaking, precedent-setting judicial orders that have enabled access to environmental justice across India.

LIFE’s work includes successful attempts at litigating for local communities and the environment against varied industries and for various ecosystems, at every stage of the environmental law procedure. These include challenges against permissions granted for ecologically devastating projects such as the Hydroelectric Project planned within the eco-sensitive stretch of Naymjang Chhu River basin in Arunachal Pradesh's Tawang; Bauxite mining by Vedanta in the Niyamgiri Hills of Odisha; the Industrial Zone proposed in the Sompeta wetland of Andhra Pradesh; as well as petitions seeking compensation for victims of environmental damage in the case of the Alaknanda Hydro Power project in Kashmir’s Srinagar, to name a few.

In addition, cases requiring the courts to step in and interpret environmental regulations when lacunae existed therein have also been dealt with by LIFE. Several of the orders that have resulted from these cases currently define the law on various environmental safeguards such as the role of public participation and community consent, duties of Expert Appraisal Committees (EACs) in grants of environmental clearances, computation of the period of limitation for challenging governmental orders, etc. One of their cases even layed the groundwork for the formation of the National Green Tribunal (NGT).

These judicial orders secured by Dutta and LIFE have helped shape environmental jurisprudence in the country, and continue to be cited by pro-environmental law practitioners such as myself. They have addressed key technical and procedural lacunae present in environmental law that are often utilized by the government-industry complex to stifle legitimate grievance redressal sought by project-affected communities.

“For their innovative legal work empowering communities to protect their resources in the pursuit of environmental democracy in India”, LIFE were adjudged the 2021 recipients of the Right Livelihood award, more commonly known as the ‘alternate Nobel prize’.

Given the prevailing set of facts and circumstances, it is deeply distressing to see the country’s premier investigation agency institute criminal law proceedings against Dutta and LIFE on alleged violations of the Foreign Contribution (Regulation) Act, 2010. In the First Information Report (FIR) filed by the CBI on April 19, 2023, Dutta and LIFE have been accused of offences under Section 35 read with violations of Sections 7, 8, 12(4)(vi), 37 and 39 of the FCRA, 2010.

Although restraint must be exercised while commenting on the legality and correctness of the alleged violations levelled by the CBI, it is pertinent to note that the FIR and documents annexed thereto indicate that some of the primary reasons for institution of the legal proceedings against Dutta and LIFE are because their activities “are likely to affect prejudicially the economic security of the state”, and that they received funding “to stall development projects” and for “legal activism and (to) take-down India’s existing or proposed coal projects”. The FIR observes that funding was received from Earth Justice, “an American NGO that funds legal professionals in various countries to litigate against coal projects”.

Despite these allegations, the FIR makes no mention of a single coal mining or thermal power plant that LIFE and Dutta has ‘taken down’. The only project referred to in the CBI’s documents is Adani Enterprises' 1 Million Tonnes Per Annum (MTPA) Greenfield Copper Refinery project, situated in coastal Gujarat.

It is also unclear how Dutta or LIFE would have unilaterally ‘stalled’ any project, without there being projected affected communities as well as legitimate legal grounds. After all, each case against any and all project was filed and placed for deliberation before the judiciary of this country, which decides such matters on their legal merits. Such allegations by the CBI, therefore, smack of disrespect to the highest judicial benches of this nation. They also show a disregard for their ability to have impartially and authoritatively assessed the multiple litigation fought by LIFE.

However, in the current climate, it is unlikely that such an argument will find much support, with various voices likely to villainize the organization for ‘impacting the economic security of India’. Scientific facts like the exorbitant current and future financial costs of climate change and the urgent need for climate action to ensure the survival of millions of Indians find no mention in the 40-odd pages of documents supplied by the CBI.

As I attempted to work on my own environmental law practice later that morning on April 22, I finally understood why the rather innocuous sounding “chilling effect” is deemed to be so debilitating. Regardless of the outcome of the criminal case instituted against Dutta, the ‘fear of the process’ initiated against him will be enough of a deterrent for many others seeking to achieve environmental justice in India.

Maitreya Prithwiraj Ghorpade is an environmental litigation lawyer.

From 2019 to 2021, he was an associate litigator for LIFE.