Author
Prof Sneha Thapliyal
Organisation/Institution
Gujarat National Law University
Country
INDIA
Panel
Environmental Law
Title
What is common about Commons? Evidence from Indian Supreme Court judgements (1960-2020)
Abstract
This paper seeks to examine the evolution of jurisprudence on Common Lands (CLs) in India over the last sixty years. Post independence, the Indian state implemented land reforms, refined its definition of private property, and witnessed the impact of political economy on land ownership. With the backdrop of equity and rights-based re-orientation of law and policy in 2000s, we analyse the judgements of the apex court of India on contested Common Land. We specifically aim to trace the rationale provided for decisions on such land to identify overarching patterns. When does the Supreme Court deem it suitable for Common Land to be privatised? We find that less than 13% (4 cases) of cases in the last 60 years resulted in SC privatizing CLs. 3 out of these 4 cases were before 2000. The interpretation of the Article 14 of the Indian Constitution “Right to Equality” traces this shift in jurisprudence. Pre 2000s, CLs were framed as extractable economic resources that require efficient allocation for growth to make a case for State’s monopoly. The same Article has been cited arguing that public resources belong to all citizens post-2000s. The framing is, contrastingly, rooted in CLs being ecological life-support systems, crucial for communities’ subsistence livelihoods, and even public health necessities. We then contrast these patterns with the literature on Common Land in the social sciences domain. Ostrom's "third way" of community-based governance is largely absent from Indian environmental jurisprudence. Courts create a binary: state control (early) or state trusteeship (later), with community rights recognized as beneficiaries, not autonomous managers.
Biography
Sneha Thapliyal is a trained environmental economist with research interests in natural resource management, sustainability, and environmental law and policy analysis. She teaches courses on microeconomics, public policy, and sustainability. She has demonstrable research expertise in quantitative methods with a special focus on microeconometrics and qualitative methods. She has also held several administrative positions throughout her academic career including member of the Board of Governors, Chairperson of the Internal Complaints Committee, Chairperson of Hostel & Student Affairs at IIM Indore. At the National Law School of India, she is currently the Dean (Students) as well Co-Director of two centres - Centre for Environmental Law, Education, Research, and Advocacy (CEERA) and Commons Cell.
