This article has been written by Prasenjeet Kirtikar pursuing Diploma in Corporate Litigation and edited by Shashwat Kaushik.
This article has been published by Sneha Mahawar.
Table of Contents
Introduction
Since the inception of industrialization and the modernization of human society, there has been vast exploitation of natural resources by means of deforestation, mining and animal slaughtering. It was realised at the global level that such exploitation of nature would lead the entire human race towards sheer disaster and not towards development. Thus, the need arose to achieve a balance between human social development and the protection of the ecosystem, which was reiterated at several international forums. The process of balancing human needs and environmental protection was termed “sustainable development.”
What is sustainable development
Background
In 1968, for the first time, the Swedish delegation proposed to the General Assembly of the United Nations a global conference on the human environment. Accordingly, the United Nations Conference on Human Environment was held in Stockholm (Sweden). The conference was the first major attempt to address issues of environmental protection at the international level. The main objective of the conference was to encourage and provide guidelines for governments and international organisations for the protection of the environment. The conference adopted 26 principles (popularly known as the Stockholm Declaration) as the Magna Carta on Human Development. The first few principles came together as the principles for sustainable development. Even in the 1992 Rio Declaration on Environment and Development (popularly known as the Earth Summit or Rio Summit), various principles were discussed related to sustainable development. Furthermore, in every international attempt to protect the environment, the principles of sustainable development were given utmost importance.
The concept
As per the Brundtland Report (1987), “sustainable development is development that meets the needs of the present without compromising the ability of future generations to meet their own needs”. Thus, sustainable development demands the protection of natural resources for the next generation and not exploiting everything at once.
It mainly focuses on three areas:
Economic: By the production of goods and services for development.
Environment: Conservation of natural resources and preservation of biodiversity.
Social: Enhancement of quality of life by proper distribution of wealth and natural resources.
Principles of sustainable development
Salient principles that underlie the concept of sustainable development were recognised in the Rio Declaration of 1992 and Agenda 21. They are as follows:
1. Inter-generational equity.
2. Use and conservation of natural resources.
3. Environment protection.
4. The Precautionary Principle.
5. The Polluter Pays Principle.
6. Principal of liability to help and cooperate.
7. Poverty eradication.
8. The Principle of Public Trust.
A developing country like India largely depends on its natural resources for its growth through industrialisation and urbanisation. However, it has also become an obligation for our country to adhere to the international guidelines to achieve a balance between environmental protection and sustainable development. The Constitution of India and the apex judicial body in India, i.e., the Supreme Court of India, have provided guidelines from time to time in this regard.
Let us try to understand the evolution of sustainable development in India from both a constitutional and judicial perspective with the help of landmark case laws.
Constitutional guidelines for sustainable development in India
Preamble of the Constitution of India
The Preamble of the Constitution of India clearly mentions our country as “socialist,” where social concerns are of immense importance. It also signifies the responsibility of the state to provide a decent and pollution free standard of living to all. While achieving social development through industrialisation and urbanisation, it is also essential to look after a pollution free social life.
Fundamental rights
The right to life and right to live in a healthy environment
Article 21 of the Constitution of India guarantees all people a fundamental right to life and personal liberty.
R. L. & E. Kendra Dehradun and Ors. vs. State of UP and Ors., 1985 (popularly known as Doon valley case)
The first indication of recognising the right to live in a healthy environment as a part of Article 21 came from the landmark judgement in this case. R. L. and E. Dehradun wrote to the Supreme Court of India about the exploitation of the ecosystem and its devastating impact due to limestone mining in Mussoorie forest.
It was implied that the disturbance of ecology due to quarrying affects the lives of people and thus violates Article 21 of the Constitution. The Supreme Court of India entertained the petition under Article 32 of the Constitution of India. It is submitted that the order of the court is based on the “Principle of Polluter Pays,” which is one of the essential principles of sustainable development.
In M. C. Mehta vs. Union of India, 1987 (oleum gas leakage case), once again, the Supreme Court of India impliedly expressed the right to live in a pollution free environment as a part of the fundamental right to life under Article 21 of the Constitution.
Even in Charan Lal Sahu Etc. Etc vs. Union of India and Ors., 1989, the Supreme Court of India held that the right to life, liberty, pollution free air and water is guaranteed by the constitution under Articles 21, 48A and 51A(g). It is the duty of the state to take effective steps to protect its guaranteed constitutional rights.
In Vellore Citizens Welfare Forum vs. Union of India and Ors, 1996 (popularly known as the Tamil Nadu Tanneries case), the Supreme Court held that the “Precautionary Principle” and the “Polluter Pays Principle,” which are two basic principles of sustainable development, can be derived from various constitutional provisions such as the right to life under Article 21 of the Constitution of India.
By analysing the above observations of the Supreme Court of India, it can be inferred beyond doubt that the right to live in a healthy environment is our fundamental right under Article 21 and must be protected in the process of sustainable development.
Right to livelihood
In Olga Tellis and Ors. vs. Bumbai Municipal Corporation and Ors. Etc., 1985, the Apex Court held that the right to livelihood is a part of the right to life under Article 21 of the Constitution of India and thus protected while achieving the goals of sustainable development. In this case, the petitioners challenge government schemes that were removed from the Bombay pavements. The argument was that evicting dwellers results in depriving him of his right to livelihood. The petitioner also contended that the state is under an obligation to provide all citizens with the necessities of life. It was also held that environmental interests in social development should not conflict with the fundamental rights of citizens.
In Banwasi Sewa Aashram vs. State of U.P. and Ors., 1986, the petitioner, adivasis and other forest dwellers argued that they were using the forest as their habitat and means of livelihood and that part of the land was declared reserved forest and the other part was acquired by the government to set up a thermal power plant, which resulted in the removal of these people from their houses. The Supreme Court gave directions safeguarding the interests of the adivasis and other dwellers while permitting the acquisition of the land only after the state government agreed to provide certain facilities to these people.
In Pradeep Krishen vs. Union of India and Ors., 1996, the petitioner challenged the decision of the Madhya Pradesh Government to allow the collection of Tendu leaves from sanctuaries and national parks by villagers and tribals living around the boundaries. The grounds of the petition were that such intrusion is causing damage to the reserved territory of the ecosystem and resulting in the shrinkage of forest cover. While deciding the matter on the principles of sustainable development by keeping the balance between protection of the environment and protection of the fundamental right to live, the Supreme Court of India directed the state government to make sure that there should not be any damage or shrinkage of the forest cover due to forest dwellers.
Right to freedom of speech and expression and the right to know
Article 19(1) of the Indian Constitution guarantees every citizen the fundamental rights of freedom of speech and expression and the right to know. This article has played a significant role in the development of environmental jurisprudence in India, as most of the cases related to environmental protection and sustainable development are immersed in the form of PILs due to the exercise of this right by the people of India.
In Tehri Vidrohi Sangharsh Samiti and Ors. vs. State of Uttar Pradesh and Ors., 1990, the Supreme Court of India deeply scrutinised the decision of the government to construct the Tehri Dam and directed it to make a proper environmental impact assessment before starting the project. It was only because of public opinion and the media that the ecosystem was protected and the government was compelled to take proper measures. Any government project affecting the health of the ecosystem and social life must be widely known to the people of India as a fundamental right.
Right to carry on trade or business
In various cases where trade or business affects the ecosystem or human life, the Apex Court has always treated Article 19(1)(g) as secondary and preached the value of sustainable development as it encompasses more fragile fundamental rights, e.g., the right to live.
In M.C. Mehta vs. Union of India and Ors., 1987, the tanneries were discharging effluents from their factories in the Ganga river, resulting in water pollution. The Supreme Court ordered them to stop working immediately, stating that the closure of such tanneries may bring unemployment and a loss of revenue but health and ecology have greater importance.
In Sushila Saw Mill vs. State of Orissa and Ors., 1995, it was held that imposing a ban on sawmills within or near the protected area of forest was not violative of article 19(1)(g) of the Constitution.
Fundamental duties
As per Article 51A(g) of the Constitution of India, it is the duty of every citizen of India to protect and improve the natural environment and have compassion for all living creatures.
Also, as per the principles of sustainable development, such as conservation of natural resources, environmental protection and liability to help and cooperate, it is the obligation of every person to contribute towards achieving the goals of sustainable development. Thus, the fundamental duty enshrined in the Constitution of India strongly advocates the process of sustainable development.
Directive principles of state policy
As per Article 47 of the Constitution of India, the state is duty bound to improve the public’s health and the standard of living of its people. It directs the state to prohibit the consumption of toxic substances, which are harmful to health. This constitutional duty can be fulfilled only in a clean environment.
The 42nd Amendment of the Constitution in 1976 added a new directive principle in Article 48-A which provides direction to the state to protect and improve the environment and to safeguard the forest and wildlife of the country.
In Indian Council for Enviro-Legal Action Etc. vs. Union of India and Ors. Etc., 1996 (popularly known as the BICHHRI village case), the writ was filed by environmentalists as the health of people in Bichhri village in Udaipur district of Rajasthan was getting affected due to the plant. A toxic slug from the plant percolated deep into the earth, polluting the water in the wells and streams and rendering it unfit for human consumption. The Supreme Court directed the government to issue remedial measures, asked villagers to claim damages and also directed the plant causing the pollution to be closed.
This landmark judgement followed the “Polluter Pays Principle” and emphasised the duty of the state to take care of the public’s health.
Public Interest Litigation
Article 32 and Article 226 of the Constitution of India confer writ jurisdiction on the Supreme Court and the High Courts, respectively. Under these articles, the Supreme Court and the High Courts have the power to issue any directions, orders or writs. In the Indian context, environmental jurisprudence is mostly developed by the judicial activism exercised through the writs. The relaxed rule of locus standi and the concept of public interest litigation (PIL) provide for the participation of individuals and organisations in matters of environmental protection and sustainable development. PILs through Article 32 and Article 226 have been proven to be a better remedy compared to the tort or public nuisance remedy, as they are relatively cheaper, speedy and provide direct access to the higher judiciary.
It is important here to note that most of the landmark case laws discussed in this article were born out of simple PILs requesting judicial attention and yet defined the course of development in India.
Conclusion
Sustainable development is a very simple phenomenon to understand, but still a very difficult one to implement. In a country like India, where there is tremendous diversity in every segment of life, it is indeed a challenging task to look after the nation’s growth to cope with international scenarios and to provide a healthy social life to its masses by protecting the environment.
By studying the directions of the apex court in various cases, we can attempt to understand the complexity of the situation our country is facing while achieving sustainable development.
References
- Environmental Law: a book by P. S. Jaswal & Nishtha Jaswal
- https://www.defactolaw.in/post/sustainable-development-in-india-evolution-and-legal-perpective#:~:text=Article%2048%2DA%2C%20which%20is,to%20the%20Constitution%20in%201976.
- https://www.researchgate.net/publication/311922155_CONCEPT_OF_SUSTAINABLE_DEVELOPMENT_IN_INDIA_INCLUDING_CONSTITUTIONAL_PROVISIONS_AN_ANALYSIS
- https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3745341
- Environmental Law: a book by Dr. V. N. Paranjape
- https://indiankanoon.org
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