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Restoring Trust: Plachimada, the Human Trust and Anticipatory Negligence as Restorative Justice

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Abstract

This paper argues for proleptic restorative justice in the area of the environment in the form of a ‘human trust’. Drawing inspiration from the Roman public trust, the human trust insists that some ‘goods’ are so important that they can neither be owned nor spoiled; rather, they must be protected. In order to explain this model, water rights will be used as an example, specifically, the case of Plachimada’s battle with Coca-Cola over the use of local ground water in Kerala, India. This case allows consideration of the protection of water for people, the ongoing privatization of natural resources, and the strength of property rights. The human trust questions the merit of seeing the environment as property or in economic terms. Moreover, the human trust urges proleptic restorative justice, as in the case of the environment, restoration after the fact is often impossible. The potential harm is so extreme that one can argue for an action in tort of ‘anticipatory negligence’, a development of the quia timet injunction.

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Notes

  1. I am not claiming that the damage done to individual victims of criminal acts can be undone, that is, I am not claiming that the case of the environment is exceptional in this sense. The perspective I take is one that seeks to generalise the human while retaining her corporeal nature. This is not a frame that admits a specific individual; the lens is rather one that concentrates our attention on any individual.

  2. While an analysis of this issue in terms of international law would be fruitful, it is not undertaken here. Likewise environmental law is not dealt with as such.

  3. It should be noted that Coca-Cola has a franchise structure. Hence, the legal actor in these cases is actually Hindustan Coca-Cola but will be referred to as ‘Coca-Cola’ in this paper. Nevertheless, “the Hindustan Coca-Cola Beverage Pvt Ltd is owned by The Coca-Cola Company” [10, p. 309].

  4. The local council.

  5. Invocation of the precautionary principle may have been appropriate here [15].

  6. It should be noted that the case involved a number of agencies and legislative regimes, including the State Pollution Control Board, the Local Self Government Department, [13, p. 258] Kerala ground Water Act, Water (Prevention and Control of Pollution) Act, 1974, Environment (Protection) Act 1986 [5, p. 27].

  7. Oddly, use of Coca-Cola as a pesticide in India is not uncommon [16].

  8. It seems that these rights are enforceable against the state and in particular with reference to drinking water.

  9. It should be noted that the legal status of groundwater is not completely resolved in India [17].

  10. While ‘human rights’ are not named here, granting the same rights to both legal and natural persons is reminiscent of Grear’s argument about corporations claiming human rights [21, 22]. The particular status of rights to water and environmental rights as human rights cannot be covered here [22–24].

  11. “The observation in paragraph 13 that the ground water under the land of the respondent does not belong to it may not be a correct proposition in law” [14, pgh 43].

  12. This case recognises the public trust doctrine in India particularly in relation to environmental protection.

  13. The Bill itself presents a number of problems not addressed here.

  14. For a summary, though not endorsement of this position, see [37, p. 430]. In relation to the environment, Collier suggests that the “most reasonable place to lodge the rights to natural assets is with governments” [36, p. 162]. Such an argument relies on governments acting in the interests of current and future generations and as Collier himself goes on to demonstrate, governments do not always act in their own best long-term interests [36, chapter 6].

  15. In the particular case of Coca-Cola, it has been argued that even Corporate Social Responsibility does not work to avert the tragedy [41].

  16. Even the hybrid property that Rose discusses cannot escape this dynamic [42, p. 164]. That is not to say that the hybrid approach is not the most promising, especially when communities are legitimate owners [42, p. 177]. It is, however, a second step.

  17. Nor have such models delivered water to the poor [45, p. 535].

  18. For an important application see [48]. For a historical perspective, see [49, 50].

  19. In Plachimada, the Division bench were curiously blind to this. Commenting on the Single bench decision, they note “No reason is however given as to why agriculture has a priority than an industrial activity” [14, pgh 36].

  20. Bakker does this by suggesting that “The more appropriate, but less widely used, antonym of water as a ‘commodity’ would more properly be a water ‘commons’” [37, p. 436].

  21. Thanks to Professor J Coates for assistance with Latin forms.

  22. And hence a candidate for a crime against humanity.

  23. I acknowledge that this already happens.

  24. This is because “It is… more difficult to show that a person has the necessary standing by virtue of an interest in the environment as a whole, because it is not generally accepted that there are ‘environmental rights’ available to the public at large” [52, p. 315].

  25. While Manderson argues that “The duty of care emerges not because we have a will (which the law of contract respects) or a body (which the criminal law protects) but because we have a soul” [53, p. 1] the duty nevertheless needs to pay attention to the body.

  26. Thus he prefers the interpretation of the injunction found in Hooper v Rogers [57] where ‘imminent’ does not appear to refer to the nearness of the danger but rather to the timing of the request for an injunction. Russell LJ notes “I take the use of the word to indicate that the injunction must not be granted prematurely” [57, at 49]. While the future damage needs only be a real probability, rather than a certainty, it should be substantial.

  27. Such consideration would include application of a strong form of the precautionary principle.

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  1. Department of Media, Culture and Language, University of Roehampton, Queen’s Building, Southlands, London, SW15 5SL, UK

    Annabelle Mooney

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Mooney, A. Restoring Trust: Plachimada, the Human Trust and Anticipatory Negligence as Restorative Justice. Int J Semiot Law 27, 243–261 (2014). https://doi.org/10.1007/s11196-012-9285-6

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