Supreme Court and Environmental Jurisprudence: Part II [“Sustainable Development”]

With an ever increasing population and corresponding requirement of economic growth, a certain amount of compromise with environment is inevitable. However, this compromise should not be so extensive that it overrides the protection of environment altogether. It is at this juncture that the concept of ‘Sustainable Development’ comes into picture. Sustainable development is essentially a policy and strategy for continued economic and social development without detriment to the environment and natural resources on the quality of which continued activity and further development depend.[1] Sustainable development means what type or extent of development can take place which can be sustained by nature/ecology with or without mitigation.[2]

The United Nations Conference on Environment and Development, held in Rio de Janeiro in 1992, provided the fundamental principles and the programme of action for achieving sustainable development.As defined by the Brundtland Report, sustainable development means “Development that meets the needs of the present without compromising the ability of the future generations to meet their own needs”.[3]

[Source: Urban Times Magazine]

Treating ‘Sustainable Development’ as a part of Article 21, Constitution of India, 1950, Supreme Court, in N.D. Jayal v. Union of India,[4] held that:

"Therefore, the adherence to sustainable development principle is a sine qua non for the maintenance of the symbiotic balance between the rights to environment and development. Right to environment is a fundamental right. On the other hand, right to development is also one. Here the right to “sustainable development” cannot be singled out. Therefore, the concept of “sustainable development” is to be treated as an integral part of “life” under Article 21."

The right to sustainable development has been declared by the UN General Assembly to be an inalienable human right (Declaration on the Right to Development) (1986).[5]The doctrine, under the guise of development, does not allow the environmental degradation.[6] However, if without degrading the environment or minimising adverse effects thereupon by applying stringent safeguards, it is possible to carry on development activity applying the principles of sustainable development, then such activity can be carried out.[7]It should also be noted that, while applying the concept of “sustainable development”, one has to keep in mind the “principle of proportionality” based on the concept of balance.[8]

The concept is required to be implemented taking a pragmatic view and not on ipse dixit of the court.[9] Court should follow the principle of sustainable development and find a balance between the developmental needs and environmental degradation.[10] Adherence to the principle of sustainable development is now a constitutional requirement.[11]

Supreme Court, in Karnataka Industrial Areas Development Board v. C. Kenchappa,[12]while considering the need to maintain environment during land acquisition, held that: [The concept of ‘sustainable development’ was extensively discussed in this case]

“.....before acquisition of lands for development, the consequence and adverse impact of development on environment must be properly comprehended and the lands be acquired for development that they do not gravely impair the ecology and environment.”

The much discussed ‘precautionary principle’ and ‘polluter pays principle’ are part of sustainable development.[13]The concept of ‘Sustainable Development’, which also emerges as a fundamental duty from Article 51-A of the Constitution, dictates the expansion of population being kept within reasonable bounds.[14]

                                             

From above, one can understand the view of the Supreme Court in relation to Sustainable Development. To some extent, the recent tragedy in the State of Uttarakhand was considered to be man-made. If steps are not taken, similar incidents can again occur. Hence, in future, a cautious approach has to be taken; otherwise, we will have to face the disastrous consequences of such activities. 

Click here for Environmental Jurisprudence and the Supreme Court: Part I [“Precautionary Principle” and "Polluter Pays Principle"]

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[1] T.N. Godavarman Thirumulpad v. Union of India, (2002) 10 SCC 606, 630

[2] Narmada Bachao Andolan v. Union of India, (2000) 10 SCC 664, 727

[3] 1987 report of the World Commission on Environment and Development (Brundtland Report) [Report of the Commission  chaired by the then Prime Minister of Norway, Ms G.H. Brundtland]; Vellore Citizens' Welfare Forum v. Union of India, (1996) 5 SCC 647, 657

[4] N.D. Jayal v. Union of India, (2004) 9 SCC 362; Also see Atma Linga Reddy v. Union of India, (2008) 7 SCC 788; Glanrock Estate (P) Ltd. v. State of T.N., (2010) 10 SCC 96; Tirupur Dyeing Factory Owners Assn. v. Noyyal River Ayacutdars Protection Assn., (2009) 9 SCC 737

[5] A.P. Pollution Control Board Ii Vs.  Prof. M.V. Nayudu (Retd.) and Ors., (2001) 2 SCC 62

[6] Amarnath Shrine, In re, (2013) 3 SCC 247, 260

[7] M.C. Mehta v. Union of India, (2004) 12 SCC 118

[8] Research Foundation for Science Technology & Natural Resource Policy v. Union of India, (2007) 15 SCC 193

[9] Susetha v. State of T.N., (2006) 6 SCC 543

[10] Intellectuals Forum v. State of A.P., (2006) 3 SCC 549, 574; Bombay Dyeing & Mfg. Co. Ltd. (3) v. Bombay Environmental Action Group, (2006) 3 SCC 434; H.P. v. Ganesh Wood Products, (1995) 6 SCC 363 at page 389

[11] T.N. Godavarman Thirumulpad (104) v. Union of India, (2008) 2 SCC 222

[12] Karnataka Industrial Areas Development Board v. C. Kenchappa, (2006) 6 SCC 371

[13] Delhi Transport Deptt., Re, (1998) 9 SCC 250, 251; Research Foundation for Science Technology National Resource Policy v. Union of India, (2005) 10 SCC 510, 518; M.C. Mehta (Taj Trapezium Matter) v. Union of India, (1997) 2 SCC 353; M.C. Mehta v. Union of India, (2002) 4 SCC 356; Tirupur Dyeing Factory Owners Assn. v. Noyyal River Ayacutdars Protection Assn., (2009) 9 SCC 737

[14] Javed v. State of Haryana, (2003) 8 SCC 369, 389

Environmental Jurisprudence and the Supreme Court: Part I [“Precautionary Principle” and "Polluter Pays Principle"]

As promised in one of our last posts, we herein discuss two significant principles, i.e, “Precautionary Principle” and “Polluter Pays Principle”, which have immensely affected the environmental jurisprudence in India. Referring to the importance of these two principles, Justice Kuldip Singh, in Vellore Citizen’s Welfare Forum v. Union of India,[1]  held that:

“In view of the above-mentioned constitutional and statutory provisions we have no hesitation in holding that the Precautionary Principle and the Polluter Pays Principle are part of the environmental law of the country.”

(Source: The American Magazine)

Vellore Citizen’s Welfare Forum has been a landmark judgement for broadening and explaining the importance of these principles. Section 20 of the National Green Tribunal Act, 2010 (“NGT Act”),[2] specifies that the Tribunal, while passing orders, shall apply the precautionary principle and polluter pays principle. The enactment of NGT Act is preceded by an inclination of the Supreme Court of India (“Supreme Court”) towards these two principles which, in effect, have become part of the law of the land.[3]

The precautionary principle suggests that where there is an identifiable risk of serious or irreversible harm, including, for example, extinction of species, widespread toxic pollution in major threats to essential ecological processes, it may be appropriate to place the burden of proof on the person or entity proposing the activity that is potentially harmful to the environment.[4]Principle 15 of Rio Conference of 1992 relating to the applicability of precautionary principle stipulates that where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for proposing effective measures to prevent environmental degradation.[5]

In Karnataka Industrial Areas Development Board v. Sri. C. Kenchappa and Ors., Supreme Court, while explaining that ‘precautionary principle’ and ‘polluter pays principle’ are part of the law of land, referred to some foreign sources.[6]For instance, it referred to the Article 7 of the Bergen Ministerial Declaration on Sustainable Development in the ECE Region, Australian Conservation Foundation etc. Precautionary principle requires anticipatory action to be taken to prevent harm.[7]That is, in view of the precautionary principle as defined by the Supreme Court, the environmental measures must anticipate, prevent and attack the causes of environmental degradation.[8]

In Narmada Bachao Andolan Vs. Union of India and Others,[9] Supreme Court held that:

“the 'precautionary principle' and the corresponding burden of proof on the person who wants to change the status quo will ordinarily apply in a case of polluting or other project or industry where the extent of damage likely to be inflicted is not known.”

In other words, if one, who seeks to change status quo of the environment, provides insufficient evidence to alleviate concern about the level of uncertainity, then the presumption should operate in favour of environmental protection.[10]Precautionary principle, along with polluter pays principles, is also part of the concept of "sustainable development" and has to be followed by the State Governments in controlling pollution.[11]Supreme Court has also held that these principles flow from the core value in Article 21 of the Constitution of India.[12]

(Source: Google Images)

Polluter Pays Principle, as interpreted by the Supreme Court, means that the absolute liability for harm to the environment extends not only to compensate the victims of pollution but also the cost of restoring the environmental degradation.[13]In other words, producer of goods or other items should be responsible for the cost of preventing or dealing with any pollution that the process causes.[14]Pollution is a civil wrong, that too against the society. Because of this, a person, who harms the environment, has to pay damages for the restoration of environment and ecology.[15] Polluter Pays Principles is now widely accepted as a means of paying for the cost of pollution and control.[16]

From above judicial precedents, it is clear that both the precautionary principles and polluter pays principles have attained a significant position in Indian environmental jurisprudence. In the next post, we shall discuss more about the role of Supreme Court in environmental jurisprudence in India.

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[1] Vellore Citizens Welfare Forum v. Union of India and others, ( 1996 ) 5 SCC 647

[2] Act No. 19 of 2010

[3] S. Jagannath  v. Union of India and others, (1997) 2 SCC 87; Tirupur Dyeing Factory Owners Association Vs. Noyyal River Ayacutdars Protection Association and Ors., (2009) 9 SCC 737

[4] Report of Dr. Sreenivasa Rao Pemmaraju, Special Rapporteur, International Law Commission, dated 3.4,1998, para 61 [As mentioned in A.P. Pollution Control Board (I) v. Prof. M. V. Nayudu (1999) 2 SCC 718]

[5]Principle 15, Rio Declaration on Environment and Development 1992; Research Foundation for Science Technology and Natural Resources Policy v. Union of India (UOI) and Anr., (2005) 10 SCC 510

[6] Karnataka Industrial Areas Development Board v. Sri. C. Kenchappa and Ors (2006) 6 SCC 371

[7] M.C. Mehta Vs.  Union of India (UOI) and Ors., (2004) 12 SCC 118

[8] M.C. Mehta Vs.  Union of India (UOI) and Ors, AIR 1997 SC 734

[9] Narmada Bachao Andolan Vs. Union of India and Others, (2000) 10 SCC 664

[10] A.P. Pollution Control Board (I) v. Prof. M. V. Nayudu (1999) 2 SCC 718

[11] In Re Suo Motu Proceedings, Delhi Transport Department, (1998) 9 SCC 250; M.C. Mehta Vs. Union of India (UOI) and Ors, (2005) 10 SCC 217; Karnataka Industrial Areas Development Board Vs. Sri. C. Kenchappa and Ors., (2006) 6 SCC 371

[12] Court on Its Own Motion Vs. Union of India (UOI) and Ors., 2012 (6) SCALE 607; Govt. of A.P. and Ors.Vs. Obulapuram Minig. Company P. Ltd. and Ors. etc., (2011) 12 SCC4 91; Glanrock Estate (P) Ltd. V. The State of Tamil Nadu, (2010) 10 SCC 96

[13]Indian Council for Enviro-Legal Action and Ors.Vs. Union of India (UOI) and Ors., (1996) 3 SCC 212; Bombay Dyeing and Mfg. Co. Ltd. Vs. Bombay Environmental Action Group and Ors., (2006) 3 SCC 434; : Deepak Nitrite Ltd. Vs. State of Gujarat and Ors., (2004) 6 SCC 402

[14] Research Foundation for Science Technology and Natural Resources Policy Vs. Union of India (UOI) and Ors., (2005) 10 SCC 510

[15] State of Uttaranchal Vs. Balwant Singh Chaufal and Ors, (2010) 3 SCC 402

[16] M.C. Mehta v. Kamal Nath and Ors., (2000) 6 SCC 213