Can India and Pakistan Go Green?

India and Pakistan, the two neighboring nations perhaps most important in South Asia, have unique constitutional positions on the environment and some shared concerns, challenges, and opportunities in the development of environmental law. After the last 23 years of liberalization and globalization in India — and with a rapidly expanding economy — the environmental consequences are alarming, and concerns have been raised with vehemence, particularly by civil society and an active judiciary. On the other hand, Pakistan’s transformation from an agrarian and rural economy at the time of partition to a moderately service-oriented, export economy and urbanizing society has come largely through the harnessing of the Indus River Basin and its resources for development. Rapid urbanization is placing huge stresses on urban infrastructure and services, with poor sanitation at critical levels.

Both countries suffer from massive population densities, deteriorating environments, the fragmentation of habitats, huge burdens on infrastructure, limited capacities to deal with environmental issues, a largely insensitive governance structure, and a reluctant political class, all of which make it impossible for the environmental debate to assume a central role.

It is in this milieu that the environmental governance frameworks, and the lessons that both India and Pakistan can share, become relevant. This paper attempts to understand these shared concerns, as there are lessons to be learned on various issues, both thematically and from a strategic perspective.

The drafters of the Indian and Pakistani constitutions did not include any specific items on "the environment" during their formulations. Indian legislators, while interpreting their Constitution, read "environment" into its residuary clause in the Union (Federal) List.  And while Pakistani legislators opted to include "environment pollution and ecology" in the Concurrent Legislative List of their Constitution, it was the National Assembly that first passed environmental legislation at the federal level.

In 1976, the 42nd Amendment to the Indian Constitution introduced environmental concerns as a matter of the Directive Principle of State Policy. The amendment specifically introduced Articles 48-A and 51-A(g) to mandate the state’s obligation to protect the environment, while also bestowing a corresponding duty to its citizens. In fact, the passage of the 42nd Amendment was a watershed moment in Indian conservation history, as forests and wildlife were both brought under the purview of the concurrent jurisdiction of Union (Central) and state governments.

Pakistan, however, seems to be going in the opposite direction. The 18th Amendment to the Constitution, passed in 2010, made profound changes to the legal and regulatory regime of the country’s environmental law. Before the 18th Amendment, the subjects of "environmental pollution and ecology" were found in the Concurrent Legislative List, allowing both the provinces and the federal government to legislate on the subject. Accordingly, the Pakistan Environmental Protection Act, 1997 was passed by Parliament and became federal law. The 18th Amendment to the Constitution, inter alia, abolished the Concurrent Legislative List and devolved the responsibilities of the federal government — in a massive decentralization of power — to the provinces. Now, the provincial assemblies alone can legislate and form policies on the subjects of environmental pollution and ecology.

While the constitutional schemes described above have been going in opposite directions in the two countries, the manner in which environmental law has been evolving is equally intriguing in both India and Pakistan. In India, the issue of environmental protection was triggered by the 1984 Bhopal gas disaster, which resulted in a hurriedly drafted Environment Protection Act in 1986 and the Public Liability Insurance Act in 1991. Before that, the legal regime to combat pollution was essentially the penal code or site-specific laws enacted pre-independence.

The environment became an official part of the governance in Pakistan shortly after the U.N. Conference on Human Environment in 1972, with the establishment of a sub-ministerial Environment and Urban Affairs Division at the federal level in 1974. A Pakistan Environment Protection Ordinance was promulgated in 1983, and the Environment and Urban Affairs Division was upgraded to the status of a ministry in 1989.

The superior judiciary of Pakistan has also played an active role in the recognition of environmental rights. Although the Constitution does not expressly protect environmental rights, the Supreme Court of Pakistan — in the Shehla Zia case — recognized the right to a clean and healthy environment as a fundamental right to life. Other precedent-setting judgments on the environment, water rights, air quality, and public trust have resulted in rich environmental jurisprudence.

Given this overview of environmental legal developments, it is obvious that these different regimes have led to challenges and opportunities in both countries. These include the regulatory environment, institutional arrangements, and capacity building on both substantive and procedural issues. An extremely significant development now surfacing in a big way is how environmental laws are perceived by corporate leaders and how infrastructure developments need to take into account environmental compliance issues. These questions are manifested in numerous disputes across the two nations, as well as across habitats, and it is here that the real challenge to find the balance between environmental sustainability and economic development emerges. A related question is how corporate social responsibility needs to transcend to a more robust environmental one. Then, there are key trans-boundary issues on environment, such as shared groundwater, that have not yet received the attention they deserve.

Each country also faces unique issues that need to be understood more as futuristic lessons for the other. India, for example, is facing severe challenges in saving its critical habitats, be they critical wildlife habitats or critical tiger habitats — to maintain inviolate zones and create such critical habitats for the future. In Pakistan, increasing industrial activity and its resultant pollution are affecting groundwater resources. The problem is so endemic — and industrial activity so closely tied to development policies — that environmental protection agencies, especially in Punjab, are facing challenges on how best to enforce the law and protect the aquifers.

The effectiveness of the regulatory regime on the environment is perhaps the biggest challenge in both India and Pakistan. The role of executive authorities, the robustness of the legal frameworks, the institutions that have been created, and the processes followed by the regulatory bodies are important parameters of evaluation for both countries. Field experience shows that while regulatory frameworks do exist in India and Pakistan, the manner in which they are being enforced leaves much to be desired.

In India, the laws regulating flood plains (or the absence thereof) and the manner in which developments along the rivers are regulated deserve imminent attention. The famed, yet maligned, environmental impact assessment process, which forms the basis of prior clearance for infrastructure projects, also needs to be considered. The institutional limitations in monitoring the conditions on which environmental clearances are given and the manner in which forests are being diverted for infrastructure projects, as well as monitoring the conditions under which they are diverted, need to be coupled with concepts of cumulative impact. Such approaches are now gaining currency, owing to recent disasters related to rivers and dams needing urgent attention in the region.

The Pakistani floods of 2010 should have been a wake-up call to decision-makers on the inevitability of climate change. Floods in Sindh province in 2011 and in Punjab in 2013 are now ample evidence of the "considerable increase in the frequency and intensity of weather events…causing frequent and intense floods," identified in the National Climate Change Policy, 2012, as "the important climate change threats to Pakistan."

While environmental laws in developing countries are bound to change, some changes are so frequent that they raise serious doubts about the instrument itself. One such example is the environmental impact assessment notification in India, first issued in 1994 under the Indian Environment Protection Act, 1986. Since then, it has been amended at least 21 times.

The Pakistan Environmental Protection Act, 1997 prohibits the construction or operation of projects unless proponents have submitted to the relevant Environmental Protection Agency an initial environmental examination or, where the project is likely to cause an adverse environmental effect, an environmental impact assessment and have obtained approval thereof.

With a new government in India and a new approach to better international diplomacy, this could be a great beginning for both countries.

Pakistani Prime Minister Nawaz Sharif’s attendance at Indian Prime Minister Narendra Modi’s swearing-in ceremony signaled new vistas. There could be mutually beneficial bilateral cooperation on electricity grid and solar power plant issues. This is the right occasion to strengthen South Asian institutions.

Sanjay Upadhyay is an advocate in the Supreme Court of India and a managing partner for the Enviro Legal Defence Firm. Ahmad Rafay Alam is an advocate in the High Courts of Pakistan and a partner for Saleem, Alam, and Company. He is also a member of the Punjab Environmental Protection Council and vice president of the Pakistan Environmental Law Association. This article is an excerpt from their policy paper, "Share Environmental Concerns Between India and Pakistan," published by New America on November 11, 2014.