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Dr. Kartikey Hari Gupta is an advocate practising at the Uttarakhand High Court. Gupta, who holds a Ph.D. in law, published a book titled Sustainable Development Law: The Law for the Future back in 2016.
In this interview with Bar & Bench’s Aditya AK, Dr Gupta talks about his book, environmental litigation in the courts, the sustainability of hydropower projects in Uttarakhand, and more.
Aditya AK: What was the inspiration behind the book?
Dr. Kartikey Gupta: There is a lot of litigation on Hydropower projects in Uttarakhand. There are a lot of technical aspects to it, but my book focuses on the legal part of it.
AK: In your book, you have argued for the feasibility of hydropower projects in Uttarakhand. How did you arrive at your findings?
KG: The findings of the book are based on concrete research. We did a survey in all thirteen districts of Uttarakhand, in which we asked specific questions to people. We have tried to gauge what the people think of hydropower projects and the courts’ involvement in the same.
A majority of people are in favour of the projects, despite the reports that they are destroying the environment in the state. This has not been scientifically proven till date.
AK: What effect have these projects had on the environment in the state?
KG: A major debate started after June 2013, when a huge disaster in the state took place. People started blaming the hydropower projects for bringing tragedy to the state. But when we started researching on it, we found that no study was undertaken to find the causes for the 2013 floods. People are blaming these projects because they are the only activity that takes place in those remote areas.
Contrary to popular belief, we have a Central Water Commission report which defines the role of the Tehri dam, which has the largest reservoir in that area, in limiting the damage caused by the floods. Even after that, people are pointing the finger at hydro projects. Of course, during our study we found that certain issues took place due to implementation, but that doesn’t mean you shoot down the whole project.
The reason why we are insisting on these projects is because there is a lack of other industrial activities. What happens to the right to development? While appearing for the power projects in court, we have argued that we providing something to society. The state government has not been able to provide the same amount of facilities to the people living here.
We have also fought cases against power projects who cause damage to the environment due to faulty implementation. In those cases, we found scientific evidence to show that there was improper muck disposal. These things should of course be checked and stopped. But if you say that because of this one instance, all projects should be thrown out, I don’t think it is a very balanced approach.
AK: Would you say that the laws relating to sustainable development in India are inadequate?
KG: Yes. Indian laws have not yet developed to that level of addressing the sustainability aspect of things. That is because we are a developing nation; our primary concerns lie elsewhere.
But our courts have done a commendable job, especially the Supreme Court, which has delivered many judgments which deal with sustainability of industrial activities. The High Court of Uttarakhand has to be given special credit for balancing the development and sustainability aspects.
We fought a litigation filed by NTPC against the Centre, wherein the Power Ministry had stopped a project. The contract made NTPC liable to make reverse payment to the contractors if the work was stopped for no fault of their own. The Court held that the project could not be stopped midway after the environmental clearances were given. It was a unique order delivered by Justice PC Pant, who is now a judge of the Supreme Court.
AK: What changes would you suggest?
KG: Coming back to the point I made earlier on muck disposal, there is no check on these things. There needs to be a legally sanctioned implementation mechanism. They are using age-old equipment which is useless. There is no specialised knowledge or inclination to put in place environment protection measures. So, we need expert, autonomous bodies which can ensure that development is balanced with sustainability.
AK: What message do you want to convey through your book?
KG: I have been to many places to talk about the book, and everybody is under the impression that hydropower projects are the enemy of the state. As I have said before, this is not a balanced idea. Harnessing of natural resources is different from exploitation of these resources.
When the Court made me a Commissioner in a case calling for the shutting down of a hydropower plant, I trekked thirteen hours a day on foot. I was shocked to find that people did not even know the name of the state. The last Commissioner to have visited them came in 1942. I had to explain that I was not the type of Commissioner who would redress all their problems!
The point is, this is the state of affairs here. People talking in Delhi, London and New York cannot judge us by their own standards. Electricity is being produced here, only to be taken away from the people. As Karl Marx said, it is alienation of the labourer from their work. A villager living in that area should get the benefit of companies coming from other parts of the country and setting up projects. In a majority of power sharing contracts, the state gets only 12% of the electricity produced.
AK: On a different note, you had argued in a PIL against the allotment of bungalows to former Chief Ministers of the state.
KG: This PIL was filed in 2010 and went on and on, as nobody took special interest. The state was not filing affidavits and notices were not getting served. In the last one and a half years, it came to the outer limit of a case, so the Court took special notice and sent notice to all the ex-CMs.
We had claimed that the state has no right to give these lavish facilities to ex-Chief Ministers. There was an Act which applied in Uttar Pradesh which allowed the state to do so, but it was never adopted by Uttarakhand. The rationale behind that was to leave behind archaic practices, and our leaders very rightly stayed away from them.
But then, corruption somehow crept in and these bungalows were allotted by the mere order of a Secretary. Just before the CM would retire, he would order the Secretary to allot him a sprawling bungalow. There aren’t many people in this state who can afford all these things. We have RTI information that the expenditure ran into crores. I don’t think it is reasonable for the state of Uttarakhand to bear these crores of rupees for just a few individuals.
So Chief Justice Joseph was very clear on this and he ordered the ex-CMs to vacate the bungalows within a certain time limit. Now, they have vacated.
We had also prayed that whatever illegal expenditure was made in the form of water bills, electricity bills, etc. must be calculated as a market price and they should pay it. It is public money! It is improper to utilise these things, especially without any legal sanction.