By Gayathri D. Naik - Principle 10 of Brasília Declaration of Judges on Water Justice, Procedural Water Justice, is significant in abating, mitigating, and addressing the challenges and consequences of human induced natural disasters like floods. Information, participation, and access to justice are three core pillars of environmental protection as well as sustainable development.
The Brasília Declaration of Judges on Water Justice, adopted in 2018 during the Conference of Judges and Prosecutors on Water Justice at the 8th World Water Forum, is a landmark in development of water justice jurisprudence. Through 10 principles, the Brasília Declaration brings together several core environmental law principles to develop a legal framework for water justice that can be adapted across the world for freshwater protection. Since most of these principles have already been adopted by several countries for environmental protection, the adoption and application in freshwater conservation is not completely new. Nevertheless, the Brasília Declaration raises several challenges in its implementation, as can be seen in India.
The Brasília Declaration calls upon judges to apply legal principles to freshwater conservation while protecting the rights of indigenous peoples and ensuring procedural justice. These principles include the Public Trust Doctrine, Polluters Pay Principle, Prevention and Precautionary Principles, Ecological Integrity, and Good Governance. This article focuses on Principle 10 – Procedural Water Justice:
Judges should strive to achieve water justice due process by ensuring that persons and groups shall have appropriate and affordable access to information on water resources and services held by public authorities, the opportunity to participate meaningfully in water-related decision-making processes, and effective access to judicial and administrative proceedings and to remedy and redress.
This Principle is reflective of three core principles from the 1998 Aarhus Convention - Right to Information, Right to Participation, and Access to Justice in Environmental Matters.1 Though the Aarhus Convention is a regional Convention, its principles have received wider international recognition through judicial and legislative interventions. This article considers the scope and significance of Principle 10 in India with reference to Kerala Floods. Specifically, this article considers how this principle could help to abate and mitigate harms that could result from future natural disasters like floods.
The right to a clean environment2 and the right to water3 are fundamental rights under the right to life in Part III of the Constitution of India.4 Recognition of these rights are the contributions of higher judiciary in the development of environmental jurisprudence in the country. While neither the judiciary nor the legislature expanded upon the scope of these rights, the judiciary has underlined the significance of both substantial and procedural guarantees to ensure implementation of these rights.
An analysis of three components of Procedural Water Justice - Information, Participation and Access to Justice to freshwater protection in India attracts attention to several legal developments.5 The Right to Information has been held to be a fundamental right under freedom of speech in several cases.6 For example, the Right to Information Act (2005) guarantees every citizen of India the right to information.7 Public Participation in decision making is mandatory in projects that require environmental impact assessments. Access to justice in India is a fundamental right under Art 32 of the Constitution of India (1950).
In procedural water justice in India, the third pillar is stronger and more effective than the first two pillars. First, the right to information, though a fundamental right, is a statutory right designed in such a way that citizens must approach the public authority for information who is duty bound to provide the information, except situations provided in the statute, or otherwise attract penalty for no disclosure of information.8 There is no obligation on the part of the public authority, per the statute, for dissemination of information without a request. The purpose of this Act was to ensure ‘practical regime for information to citizens’, and while many environmental protection cases have benefited from this right, these provisions are inadequate in case of natural calamities like floods.
Situations like floods warrant prior, adequate and timely information dissemination of weather conditions9 and human activities like water levels in dams. The fatalities and damages that resulted from the Kerala Floods can be cited as an example for highlighting the need for right to prior, adequate and timely information - here, the ‘right to information’ and the corresponding ‘duty of the state’. Although there was information dissemination by authorities, as in flood situations, it isn’t a consequence of ‘right of people to know’ but reflected only as a state obligation to ‘inform the people’. If there was a ‘right to know’ without a request, the power then shifts to people and those duty bearers could be held accountable.
Secondly, environmental protection statutes in India, like the Environmental Protection Act (1986) and the Water Act (1978), lack rights-based approaches and instead adopt duty-based approaches which mandate the establishment of regulatory bodies and authorize their duties.10 The focus of these laws is pollution control only. The right to participation in decision making is not recognised by these statutes. Participation is envisaged in cases like mining where environmental impact assessment is mandatory for environmental clearance. Thus, the participatory right in decision making is yet to achieve statutory attention in India. It should be noted, however, that many water projects aided by financial institutions like the World Bank provide for local, participatory water governance in community led water supply projects.11
Lastly, even though the right to justice is a constitutionally recognised right in India, non-disclosure of information and the lack of public participation in decision making in freshwater conservation or mitigating effects of natural calamities is yet to be imbibed in spirit of such a right. Here arises the significance of Principle 10 of Brasília Declaration. The Principle, which calls upon the judges to play a proactive role in water justice, could be a stepping stone for improving water governance in domestic jurisdictions like India where the right to constitutional remedies is a fundamental right, and where the judicial contribution to environmental jurisprudence is inseparable and inevitable for effective implementation and trust of the public in judiciary is high.
1 UNECE, ‘ Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters’ (adopted 25 June 1998, entered into force 30 June 2001).
2 Virendra Gaur v. State of Haryana 1995(2) Supreme Court Cases 577.
3 Subhash Kumar v. State of Bihar. A.I.R. 1991 S.C. 420.
4 Part III of the Constitution of India, 1950 protects certain human rights in the form of fundamental rights against actions of the State. Art 21 of the Constitution- Protection of life and personal liberty- ‘No person shall be deprived of his life or personal liberty except according to procedure established by law’.
5 Gayathri D Naik, ‘Groundwater Regulation in India: Applicability of Public Trust Doctrine and Right to Participation in Decision Making to achieve Right to Water’, in Javaid Rehman and Ayesha Shahid(eds) Asian Year Book of Human Rights and Humanitarian Law (volume 2, Brill | Nijhoff 2018).
6 State of U.P. v. Raj Narain AIR 1975 SC 865; Dinesh Trivedi v. Union of India (1997) 4 SCC 306; Bennett Coleman & Co v. Union of India (1972) 2 SCC 788; Reliance Petrochemicals Ltd. v. Proprietors of Indian Express Newspapers Bombay Pvt. Ltd. (1988) 4 SCC 592; People's Union for Civil Liberties v. Union of India (2003) 2 S.C.R. 1136.
7 Section 3 of Right to Information Act 2005.
8 Section 6-11 of the Right to Information Act 2005.
9 This has been effective in cyclone warning systems that has helped to reduce calamities to lives.
10 See for laws and rules in environmental protection in India, http://moef.gov.in/rules-and-regulations/environment-protection/
About the Author
Gayathri D. Naik is a Commonwealth Scholar and Doctoral Candidate at the School of Law, SOAS University of London. She is a member of the IUCN World Commission on Environmental Law. She holds BAL.LLB from Govt Law College, Ernakulam, MGU; MPA from IGNOU and LLM from South Asian University, New Delhi. Her doctoral research examines the implications of water related subsidies on social and environmental equity in groundwater access and regulation in India. She works on water justice, socio-legal aspects of environmental law, and constitutional rights.