By – Gauri Yadav

Abstract 

This article elucidates the colonial origins and post-colonial continuity of environmental law in India. It argues that environmental regulation was never designed for preservation but rather for legitimising dispossession. Through an examination of forest laws, development projects, and mining regimes, the article traces how legal structures have historically served extractive interests over ecological concerns. The post-independence State, far from rupturing colonial logic, internalised it through a model of state capitalism. In doing so, the law becomes complicit in the marginalisation of indigenous communities, not through absence, but through its very presence.

Introduction

Environmental law in India did not begin as an act of protection. It emerged as a tool of control under the colonial state. In pre-modern systems, religious and customary norms regulated the use of natural resources, but not with the intent to conserve them through legal machinery. While these customs often led to the protection of nature, they lacked a clear and separate legal category called “environment law.”

The colonial period marked the introduction of “environment laws”, in essence, laws to manage, control, and extract resources like timber, minerals etc. The regulation of forests wasn’t for sustainability but rather for the maximisation of utility. Timber was not a resource to be preserved but a product to be exported as per the Indian Forest Act 1865. Under the facade of conservation, these laws displaced indigenous communities and criminalized their relationships with the forest. Though India has long enjoyed independence, the colonial mindset and greed have never left its fabric. As Upendra Baxi notes, the law often acts not as a shield for the vulnerable but as a sword in the hands of the capitalist state. It serves the bourgeoisie, even when it appears to serve nature.

“Nationalist” Displacement

Colonial environmental policy had little to do with preserving ecological balance. The railways, often hailed as symbols of progress, served primarily to transport goods rather than people. In their wake, hills were flattened, forests cleared, and coal mines installed in place of tribal homes. The Indian Forest Act enabled this process by vesting forests in the state and criminalising customary use. This was not a mistake or a byproduct. This was a deliberately manufactured design. 

The colonial state laid out precise legal conditions for the exploitation of forests. These laws did not end with independence. The post-colonial Indian state inherited and internalized this logic. The “ruler” might have changed; the “rule” did not. The nationalist development project, the Narmada Valley Project diverted river water to power agriculture and industry in Gujarat. However, vast deforestation and the displacement of over three lakh tribals were the “collateral damage” for nationalist development. Further, as documented by the Morse Committee Report (1992) and Narmada Bachao Andolan, many were not resettled or even adequately compensated.  Under the guise of national interest, their homes were sacrificed. Numerous sacrifices as such causes us to ponder whether tribals are considered to be “equal Indian citizens”? If the development was for the “nation” why should only some citizens pay the price

The mining industry continues to damage ecosystems. It relocates families and leaves behind ghost towns. In the 1990s, the liberalization, privatization, and globalization (LPG) programme gained momentum. The Indian government withdrew from direct market participation. Private capital was encouraged in every sector. Mining was no exception, and hence profit took center stage. Tribal displacement was now legalized under the guise  of economic reform. These reforms were justified as national development. But if development only benefits cities like Mumbai and Delhi, is it truly national? Would laws ever be framed to dislocate urban residents for mining? That would not be acceptable to the nationalist imagination. So why is it acceptable when it affects rural and tribal communities? 

What unfolded was the systematic displacement of tribal communities residing in the resource-rich regions of Odisha, Chhattisgarh, Jharkhand and beyond. This was carried out by powerful multinational corporations, both domestic and foreign, including entities such as HindalCo, Jindal Coal, Vedanta and UAIL.

State Capitalism

The law requires tribals to prove ownership over land they have lived on for centuries. Without official documents, the land is taken. Peter Goodrich notes that law privileges text over images (ratio descendi over imago descendi). In a state that values documentation, oral histories and lived realities are dismissed. The pain of Partition and the violence of colonization erased records. Lived histories, oral traditions, and memory are relegated to the periphery. The law punishes people for the silence it created. 

A similar situation arose in the state of Australia, the colonial fiction which declared Australia as “terra nullis” (land belonging to no one) when the British arrived. It justified the dispossession of Aboriginal people by denying their sovereignty, legal systems, and relationship to the land. This allowed colonizers to see Aboriginal land as a blank slate for their version of “history to begin” replacing Aboriginal history. However, post independence, Native Title law in practice, demands proof of continuous connection to land, putting cultural and native identity on trial. The High Court of Australia in Mabo v Queensland by demanding continous connection essentially ask the tribals to prove their genocide. 

Marx’s theory of primitive accumulation remains deeply relevant in this context. It explains how labour is commodified and land is systematically taken from its original producers. In India, the law does not merely allow this process—it facilitates it. It erases collective memory and severs the relationship between people and their land. This is the essence of what Marx termed “bloody legislation.” Rather than shielding the vulnerable, it flogs, brands, and dehumanizes them. Primitive accumulation in India functions through multiple absences. The absence of protective laws sustains exploitation. The presence of weakly enforced laws pretends to help but fails. And sometimes, there is an absence within presence. Laws that exist in form but not in effect. The Land Acquisition Act proved inadequate in protecting the constitutional guarantees of the tribals in India. 

The state no longer stands apart from capital; it enables and reinforces it. It does not resist capitalism; it consolidates its reach. Property in India was once a fundamental right, but the 44th Constitutional Amendment of 1978 stripped it of that status. This shift did not signal an ideological rejection of private property, as Marx might have imagined. Instead, it cleared the path for the State to acquire land more freely (Eminent Domain), to push forward nationalist agendas under the guise of public interest. The intention was not to oppose the market but to centralize control over its circulation. This is not socialism. It is state capitalism.

As Gayatri Spivak, Partha Chatterjee, and Ratna Kapur argue, the East often reproduces the very Orientalist logics the West has discarded. The process of “othering” continues, now directed inward, against the subaltern. The Indian state nationalizes industries and invokes the rhetoric of equality, but its actions betray a deeper allegiance. It bargains with capital. Legal regulation becomes malleable. Laws adjust to power. Capitalist elites do not fear the law—they craft it. The law does not restrain them. It serves them.

Conclusion

Environmental law in India is not just about forests or rivers—it is about power. It reveals who is protected, who is punished, and who is erased. While legal reform has made gains, the deeper structure remains tilted. Laws meant to protect the environment often enable its destruction when corporate profit is at stake. Tribal and rural communities continue to be displaced in the name of national interest—a “nation” that rarely includes them.

Author’s Bio

Gauri Yadav is a third-year BA LLB Honours student at Jindal Global Law School. She is passionate and keen on the subjects of Jurisprudence, Gender Studies, Sociology and Constitutional Law. 

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