The development trajectory for most nations has come at the backbone of a strong ecological resource base. In fact, economies such as those in the Middle East are largely based upon exports of crude oil and thus in effect are dependent upon their endowment of natural resources. This illustrates why natural resources are now considered a part of capital stock (natural capital) of a country. This implies that there is a significant intersection of developmental objectives along with environmental ones and not always would such objectives be in a state of conflict as natural ecosystem also supports the developmental discourse from time to time.

In that context, it is important to evaluate how to govern the environmental and resource allocation matters and decide on an appropriate agency competent enough to deal with such issues in India. Let us take a recent example of the central government’s plan to construct and redevelop a significant area in South Delhi that would require cutting down around 14,000 trees in the national capital region. This case has a typical problem associated with environmental governance in India, whereby a PIL has been filed with the NGT seeking clarifications and stay on the project as the petitioner claims that clearances given under this project were done without proper project evaluation and environmental impact assessment was not considered. They even point out that the carrying capacity of the local ecosystem does not permit for such a massive redevelopment project to be approved in the first place.

This highlights how the executive from time to time has often not adequately weighed in the environmental concerns and has often disregarded or sacrificed them for its agenda of development. Without venturing into the abstract and philosophical notion of development, one can argue that development is required, more so for developing nations that have a massive population that struggles against hunger and deprivation. But over here, the question is, at what cost should development occur and who should pay the cost of such development?

In most cases, the beneficiaries of development happen to be the upper-middle and the middle class whereas the poor happen to gain little from it; though the environmental costs are borne greater by the poor due to their lack of capacity to abate the harsh environmental conditions (The poor can’t switch on an AC in the summers to beat the heat or buy air-purifiers to tackle the problem of pollution).

This illustrates that such policy decisions should be viewed as a form of reallocation or redistribution of resources and if this is to be the case then where should such a decision be ideally placed? The executive. As paradoxical as it may sound, the first best outcome given the multidimensional nature of the problem related to environment comes from the executive. The reason is simple; the executive should ideally represent the wish of the people.

Individual preferences would aggregate and select or elect a legislative which then selects the executive. Given that they both face electoral scrutiny; in principle they are supposed to represent the preferences of the voters while undertaking policy decisions. So all redistributive decisions taken by the executive would in effect be representative of the preferences of the electorate or the people. In that context, any decision taken by the judiciary may not be either Kaldor-Hicks or Pareto Efficient and thus, be a sub-optimal decision: or in simpler words, it may not make the most number of people possible happy.

The question then arises: why does the judiciary need to step in when the executive is the most competent authority? The answer to this arises largely from the fact that the judiciary can intervene only when a PIL is filed and in most cases it intervenes when there is executive inaction. Thus, judicial intervention, which is often a case of judicial activism (or overreach at times), is with the best interest of bridging the governance gap that exists.

In the present case of South Delhi, before the NGT, the question is whether the executive did its job in sanctioning of the project? If yes, then it should allow the project to go ahead and ask for a roadmap to generate greater ecosystem services by greater plantation of a mix of trees for the citizens of Delhi. If the requisite project was approved without proper procedures being followed, then the appropriate individuals must be held up and significant steps should be taken to ensure that the project gets going so that it does not become a case of public finance being stuck in a long legal dispute regarding the asset in question. If the project was approved however the NGT feels that procedures need to be made robust for further approvals, then it can always order for better procedures to be created for greater clarity going forward.

Judicial intervention on executive matters would be instrumental only if the intervention is able to achieve the outcome as in such a situation, it becomes a breach of the doctrine of separation of power which has numerous institutional and social costs. It is imperative that such an intervention is done with a “willed-result” kept in mind and certain self-imposed limits as advocated by justice Bhagwati are exercised while undertaking such an intervention. Thus, the important question here is, will the objective of prevention of environmental degradation be addressed by looking at the said developmental project in isolation? Somehow, development projects should not be considered to be in isolation as several projects are interlinked and thus, even if the project is stalled and these trees are prevented from being cut, the question of environmental degradation still remains. So by stalling the project we achieve two things; the development of the adequate housing for government employees at the said site stops while the public exchequer faces numerous costs on account of relocation of the project while the problem of environmental degradation will largely be unresolved.

The essence of what I am arguing is that the project should not be stopped anymore as the government has already spent significant public resources on it. That makes it all the more important for the NGT to issue directions as far as regeneration of the loss ecosystem is concerned at the earliest as delays in such projects can often cause project costs to skyrocket which would again come at the expense of the public exchequer. The directions should ask the executive to come up with a practical and feasible roadmap for revival of the ecosystem so that executive institutional constraints are represented once the roadmap is implemented. The NGT has a lot of tools available to ensure it protects and preserves the environment; it must combine them to ensure an appropriate strategy to meet the environmental goals but it is about time that developmental goals are equally weighed in so that the outcome achieved is an efficient one: or, in other words, that there is no other outcome that could be attained that would make the most amount of people better off.

Bhasin is a research associate at the Pahle India Foundation. Views expressed are personal.

(The article appears in the September 15, 2018 issue)