Author: Ms. Apoorva Satapathy, Assistant Professor, O P Jindal Global University

Introduction

The core argument in this post is that the Indian Supreme Court’s (SC) intervention in the conservation of the Great Indian Bustard/Godawan (GIB) in MK Ranjit Singh v. Union of India (2025 INSC 1472) (Godawan judgment) is a landmark environmental decision as it provides a moment of reckoning for interpretation of corporate responsibility in the Indian legal jurisprudence. Through mandatory inclusion of “environmental responsibility” within the ambit of Corporate Social Responsibility (CSR), the Court reorients the erstwhile corporate discretion in choosing the theme of their CSR mandates, wherein environmental/ecological protection was one of the enumerated themes in the Schedule VII list of Companies Act 2013 (the Act). In arguing so, the write up will show how such reframing has occurred and the underpinning jurisprudential current that it will drive (or, perhaps, seems to be driven by).

CSR: Voluntary Philanthropy to Statutory Responsibility

CSR was made mandatory by the Act 2013, which reflected the shift from a shareholder theory of corporate governance to a stakeholder theory of corporate governance, wherein not only the private interests of the shareholders, but also the interests of other stakeholders i.e., the “wider community”, which is inclusive of the “natural world”, as is explicit from the CSR provisions of the Act 2013 (especially, Section 166(2) that imposes a fiduciary duty on the directors of protection of environment, https://www.indiacode.nic.in/show-data?abv=CEN&statehandle=123456789/1362&actid=AC_CEN_22_29_00008_201318_1517807327856&sectionId=49095&sectionno=166&orderno=170&orgactid=AC_CEN_22_29_00008_201318_1517807327856), must be regarded (para 37, Godawan case). Hence, under Section 135 of the Act 2013, certain companies (based on their turnover, profit, or net worth in the immediately preceding financial year) must constitute a CSR Committee and draft a CSR policy (Section 135 (1), 3(a)). In implementing such CSR policy, the company may choose a subject-matters enlisted in Schedule VII of the Act (Section 135(3)(a)), though the provision does specify that the company “shall give preference” to the local area, and adjacent areas thereof, where it operates (Section 135 (5)). Most important, the Board of a company, qualifying under Section 135(1) for CSR policy, must ensure that in every financial year, at least 2% of the average net profits of three immediately preceding financial years, must be spent towards the CSR policy (Section 135(5). The list in Schedule VII contains different matters, including contribution towards different environmental issues (Schedule VII (iv)). Thus, the environmental protection/preservation was one of the aspects of the social responsibility of a corporation, along with other predominantly anthropocentric welfare activities.

CSR: Godawan’s New Perspective

With the Godawan judgment, the SC has eliminated the corporate choice under Schedule VII by declaring that “Social Responsibility must inherently include Environmental Responsibility” (para 38, Godawan case). Hence, the SC has been said to have reframed the corporate responsibility through such elimination of the corporate choice vis-a-vis environmental responsibility by mandatorily integrating Corporate Environmental Responsibility (CER) as an element of CSR. This write-up will chart out the exact reframing that has occurred and its impact on the ecocentrism in India.

It is argued, herein, that SC’s emphasis on mandatory environmental responsibility, as part of the CSR framework, results in a normative separation within Schedule VII itself. Schedule VII enlists different sets of CSR activities, wherein the ecological activities (Schedule VII (iv)) form a discretionary option interchangeable with other predominantly human welfare-centric activities such as poverty eradication, promotion of education, promotion of gender equality, etc. But, by compelling corporate responsibility vis-a-vis environmental protection, the SC disrupts this interchangeability, preventing a choice between the environmental and human welfare-centric domains. This disruption of interchangeability gives a distinctive position to the environment/ecology, separate from other social welfare-based contributions signifying that companies have a responsibility (or the directors have a fiduciary duty) towards ecology/environment, which is separate from but parallel to that of other stakeholders. Thus, the company’s environmental responsibility is reframed from being one among various socially beneficial activities to a distinct and constitutionally non-negotiable obligation for the companies, grounded in the logic of intrinsic value of the environment and the non-human beings of ecosystems, irrespective of their utility towards human welfare.

This marks the departure from the functionally anthropocentric worldview of CSR framework, wherein environmental protection was interchangeable with human welfare activities signifying that choosing either would make a company “socially responsible”, towards an ecocentric reconfiguration of corporate responsibility, wherein a company cannot be called as a “socially responsible” if it “ignor[es] equal claims of the environment and other beings of the ecosystem” (para 38, Godawan case). Hence, the earlier available corporate discretion in choosing human welfare-related activities over environmental activities under Schedule VII towards fulfilment of CSR obligations is curtailed, compelling companies to mandatorily allocate funds towards activities signifying ecological well-being and protection, as part of the basic framework of CSR. This eco-centric reframing of corporate responsibility aligns with the SC’s views expressed early on in the judgement where the bench cites Bishnoi community’s eco-veneration practices (vis-a-vis Godawan) and “eco-centric [way of] living” that “honour[s] the intrinsic value of every living being” as an example of India’s culture and tradition of “eco-centric …..perspective of the universe” (para 3, Godawan case). It is also unique in the way the SC directly imposes a normatively eco-centric duty on corporations, instead of the resorting to indirect ways of imposing a duty on the State to formulate liability-frameworks for corporations towards environmental protection.

Supreme Court’s Ecocentrism: Without Rights-Discourse?

The SC charts a unique way to impose a mandatory CER within the CSR framework. The SC relies on: firstly, the Fundamental Duty of a citizen towards the environment under Article 51A(g) of the Indian Constitution (para 38, Godawan case), instead of Hohfeldian correlatives () or interest-based rights theory (); secondly, a corporation’s legal personhood, which makes it an “organ of the society” and puts it within the normative reach of the Fundamental Duties, as a juridical move to establish an in-principle existence (as Fundamental Duties are non-justiciable) of a corporate duty towards environment under Article 51A(g); and thirdly, the CSR framework as an enforcement mechanism to emphasise on the legislative intent behind Schedule VII(iv) (read with sections 135 and 166(2)), which includes “ecological activities” within the ambit of “social responsibility”, thereby indicating an expansion of “corporate duty from…..protecting shareholders to protecting ecosystems that we all inhabit” (para 38, Godawan case). Further, particularly for cases as Godawan, which involves critically endangered species, the Court also invoked the “Species Best Interests” Standard (prioritises the interests of an endangered species over “commercial or industrial interests” such as profit) along with the Polluter’s Pays principle to emphasise the duty of the corporations involved in production of non-renewable energy sources, power generation processes, and infrastructure, to “bear the cost of species recovery” (para 39, Godawan case). Cumulatively, these methods are used as a juridical technique by the SC to impose a constitutional obligation on corporations to protect environment, without needing or having to creating new rights for environment/Nature per se.

This approach stands in contrast to Rights of Nature (RoN) approaches, which are mainly two types: firstly, the Nature’s rights model, like in Ecuador’s Constitution or Panama’s legislation, wherein the Nature, as an entity, is granted right without resorting to the juridical technique of legal personhood; and secondly, the legal personhood approach wherein natural entities are designated as juridical person, similar to corporation’s legal personhood (as also argued by Stone in his groundbreaking article) to enable the extension of people’s rights to them. In certain common law jurisdictions, such as New Zealand, this approach has been successfully used wherein legal personhood of natural entities like Whanghanui River and the Te Urewera was established through statutory mechanism that underpin the Māori (New Zealand’s prominent indigenous group) philosophies. This approach was also explored by the Uttarakhand High Court in the case of Mohd. Salim v State of Uttarakhand and Ors., wherein the HC granted legal personhood to Ganga and Yamuna rivers and their tributaries/distributaries, thereby not only enabling grant of ‘people-rights’ to the rivers, but also, imposition of duties/obligations on them. This order, however, due to its legal unsustainability of imposing duties on natural entities, was eventually overturned by the SC, wherein the apex court declared that the said rivers cannot be granted such legal personhood through judiciary and such status can be (should be) granted by the legislature. SC not resorting to the Rights of Nature (RoN) discourse (as it does not grant legal personhood, and hence, does not extend any rights, to GIB or Lesser Florican/LF or the GIB habitat/ecosystem) in the Godawan case, but instead, using the Fundamental Duty-based language towards eco-centric reconfiguration of the corporate responsibility within the CSR framework, might be argued as a conscious choice due to SC’s approach in the State of Uttarakhand v Mohd. Salim. However, there is no concrete indication of the same within the judgment.

But, even though the SC does not address Nature, or the natural entities (herein), as rights-bearing subjects like the aforementioned techniques of RoN discourse, the ecocentrism echoed by the apex court in this case jurisprudentially resonates- perhaps more than the predominant models of RoN that emphasise on ‘rights’ and hence, have invited much critique, such as by Minhea Tanasescu or Mauricio Guim and Michael A. Livermore – with the normative logic and worldview envisioned by RoN discourse, i.e., acknowledging the requirement to reconsider and reframe the human-Nature relationship through the lens of “mutual co-existence” (para 6, Godawan case), grounding it in the indigenous philosophy (specifically focused on the Bishnoi community in this case), rejection of anthropocentrism (as humans, we cannot not “own” or “use” environment for “our purpose” (para 37, Godawan case), and recognition of intrinsic value of ecology, independent of human utility (para 3, Godawan case).

Tensions in Duty-Based Approach

While the duty-based formulation, as is argued above, does prevent ecocentrism from the criticisms of RoN discourse, there are, however, questions that get raised in this manner of imposition of Corporate Environmental Responsibility (CER) duty, which are not acknowledged and consequently, unanswered by the SC. These questions are in terms of both enforcement and the normative thrust. The CSR, of which CER is declared as an essential element, is a mandate for companies as they must expend at least 2% of their average net profit of three immediately preceding financial years towards their designed CSR policy. As can be reckoned, the mandatory inclusion of CER would imply that the CSR policy so designed by the CSR Committee would have provisions towards environmental activities, potentially in the areas mentioned in Schedule VII (iv) of the Act. But the issue arises in this very element that CSR is only an expenditure-based framework, instead of a goal-oriented, result-based, scope-specific framework, and, hence, in absence of a minimum monetary threshold, or an otherwise tangible limit specified vis-à-vis the CER element, it might become a ticking-the-box exercise, a mere formality. Thus, a company might only dedicate a meagre percent of their profits towards an environmental cause to be called ‘socially responsible’, while not having to ensure that its primary operations are in alignment with the interests of the environment, which is the normative basis of the RoN discourse.

In addition to these enforcement-based issues, there is also the element of insufficient normative thrust of the duty-based language. The main element of RoN discourse, which is also the main reason for its criticism by scholars like Tanasescu or Guim and Livermore, is the portrayal of Nature/natural entities as rights-bearing subjects of the legal system, either based on legal personhood or based on inherent value. This prevents dependence of Nature/natural entities on human agency to, firstly, default at their duty, and secondly, to claim remedial measures before court of law. But the use of fundamental duty under 51A(g), which does not create a Hohfeldian correlative right as there is neither justiciability nor specific rights-bearing subject to which such duty is owed, when mobilised as a normative restraint on corporate conduct vis-a-vis environment, instead of designating the environment (or at least the GIB/LF, or the GIB habitat, for this specific case) as entities with legal standing, and hence, rights, there is a dependence on human agency, thus making it anthropocentric, at least, in practice.

Nonetheless, it is a critical moment in corporate governance because the environment has been made mandatory element of CSR through removal of its interchangeability with human-centred social welfare activities, thereby categorically declaring that corporate duty towards environment is not limited to the extent of their volition or polluter’s pay principle or  to the extent that environment is relevant for human welfare in a particular context, but in its own right. By basing it in constitutional obligation and fundamental duty, the SC also does not provide the space of potential conflict of rights (nature’s rights and people’s rights, often raised as a criticism for RoN discourse such as by Guim and Livermore). Further, it has also innovatively mobilised the juridical personality of corporations to bring them under the purview of Article 51A, as a duty-bearer. The limitations help to indicate that there is work to be done at more granular level for this unprecedented path to be implemented in an effective manner, apart from the fact that CER-CSR integration is only the beginning towards corporate responsibility towards environment through ecocentrism.

Conclusion

            In a nutshell, the SC’s integration of CER into CSR is a profound turning point because it reframes CSR, by interpreting the extant juridical personality feature of corporations, mandatory CSR provisions, Fundamental Duties of Indian Constitution, and environmental law principles such as Polluter’s pay principle, to deduce a direct corporate responsibility towards environment, which otherwise has been, more often than not, indirectly applied onto private actors, through the State. Hence, the ecocentrism is very apparent. But not specifying the details of this normative positioning might dilute the profoundness of this reframing, especially because the SC does not an RoN approach towards the matter. And, hence, while the judgment must be lauded as it gives a liability framework, caution must be applied in evaluating its implementational impact, thus, requiring a continuous revisit for grounding in real-time impacts.