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SUSTAINABLE DEVELOPMENT

 Legal basis of sustainable development in india

 Legislative development of sustainable development
o Environmental principles through cases: SD is a principle incorporated into Indian law by the
judiciary.
o A series of decisions by the SC where the ‘balancing’ of environment and development
concerns was applied.
o Section 20 fo the NGT Act 2010- an exception (Tribunal to apply certain principles— the
tribunal shall, while passing any order or decision or award, apply the principles of SD, the
precautionary principle and the polluter pays principle.
 Approach of judiciary and SD
o Banwasi Seva Ashram v state of up 1987
 Responsibilities were imposed on NTPC to find out alternative plots, render
resetllement and subsistence allowance, give free transportation, reserve jobs and
provide facilities of roads, water supply, health care and electricity
o Vellore Citizen’s welfare forum v UOI 1996
 Tamil Nadu tanneries case
 The traditional concept that development and ecology are opposed to each other is no
longer acceptable. SD is the answer
 “We have no hesitation that SD as a balancing concept between ecology and
development has been accepted as part of customary international law though its
salient features have yet to be finalised by the international law jurists”
 SD was explained as an umbrella concept with other principles and norms as part of
it . The precautionary pricniple ash the polluter pays pricniple are essential features
of SD
o Indian council for enviro legal action v UOI 1996
 Bichhri Village case
 Due to disposal of industrial chemical case the soil quality of the soil got destroyed.
 The question for the court was how to make the soil fit for agriculture again.
 The SC said that this was a scientific issue and mentioned certain institutes like
national environmental engineering research institute. It directed that the expertise of
the institute can be taken to restore the quality of the soil.
 Economic development should not be done at the cost of ecological destruction, the
same should not be hampering economic development. It was stated that economic
and ecological developments should be well balanced with effectiveness of both
intact.
o Narmada bachao andolan v UOI 2000
 SD means the type or extent of development that can take place and which can be
sustained by nature/ecology with or without mitigation. In these matters, the required
standard now is at risk of harm to the environment or to human health is to be
decided in public interest, according to a “reasonable person’s” test.
o TN Godavarman Thriumulpad v UOI 2008
 It is the duty of the state under the constitution to devise and implement a coherent
and coordinates programme to meet its obligations of SD based inter-generational
equity.
 From 1997 there are multiple orders.
 It is considered as a landmark judgment in the field of protection of forest and forest
rights.
 Concept of SD as a part of constitutional law was first discussed in this case.
 
 
 
 
 India’s approach to SD
o National conservation strategy and policy statement on environment and development 1992
 “the Indian approach to global environmental problems is generally in keeping with
the needs of other developing countries and has the following basic elements: our
economic development cannot be hampered in the name of the global environmental,
which have done nothing to damage and can do little to save”
o 1985 guidelines on EIA as cited by Bharucha J in NBA v UOI, SC, 2000
 “concern for environmental pollution is rather a recent phenomenon which had been
triggered mainly by the backlash effect of accelerated industrial growth in the
developed countries. The two major criteria—- the project should maximise
economic returns and it should be technically feasible— — no longer considered
adequate too decided the desirability or even the viability of the project. It is now
widely recognised that the development effort may frequently produce not only
sought for benefits, other—often unanticipated— undesirable consequences as well
which may nullify the socio-conic benefits for which the project is designed”
o SD meets the needs of the current generation without hampering the rights of the future
generations.
o Malleability
 Ability to change with the demand of time
 With respect to malleability of SD there are several cases in the judiciary.
 Taj Taprezium case
 MC Mehta 1997
 “the atmospheric pollution in TTZ has to be eliminated at any cost.
Not even one percent chance can be taken when - human life apart
- the preservation of a prestigious moment Like the taj is involved”
 Blue lady case
 Research foundation for science technology and natural resources v UOI
2007
 A PIL challenging the import of hazardous waste into the country
was filed in 1995 in the SC by the Research Foundation for
Science, Technology and Natrual resource policy.
 The petition provided that “the import of hazardous/toxic wastes
endangering the environment and life of the people of India is
unconstitutional”
 It is under this writ petition, that in September 2007 the SC granted
the permission to dismantle the Blue Lady Ship at Alang.
 The SC ordered the constitution of a committee of technical experts
(hereinafter CTE) whose task was “to find out whether the
infrastructure as existing at Alang presently is adequate” in order to
dismantle the Ship Blue Lady.
 The SC specifically asked the committee to review three aspects
 Whether pre-conditions for dismantling have been
complied with
 Whether 80% of the asbestos is reusable or not
 What steps have been taken to control the environmental
impacts of asbestos dust generated in the process of
dismantling.
 The report was submitted by the CTE on may 2007 and accepted
by the court on September 2007.
 It submitted that more than 85 % of the asbestos is
reusable
 This was sufficient to order the dismantling of the ship.
 The SC also gave necessary measures for the laborers during
dismantling
 “When we apply the principle of SD, we need to keep in mind the concept
of development on one hand and the concepts lie generation of revenue,
employment and public interest on the other hand. This is where the
principle of proportionality comes in”
 Kudankulam Nuclear Plant case 2013
  Proportionality test
 “Court emphasise on striking balance between the ecology and environment
on one hand, and the projects of public utility on the other. The trend of
authorities is tat a delicate balance has to be struck between the ecological
impact and development. That other principle that has been ingrained is that
if the project is beneficial for the larger public, inconvenience to smaller
number of people is to be accepted. It has to be respectfully accepted as a
proposition of late that individual interest or, for that matter, smaller public
interest must yield to the larger public interest.”
 
 
 Mainstream policy perspective
o Balancing is possible and inevitable [Weeramantry J wrote in his separate opinion for the
international court of justice in the case of Hungary v Slovakia 1997]: “the protection of the
environment is…a vital part of contemporary human rights doctrine, for it is a sine qua non
for numerous human rights such as the right to health and the right to life itself”
 Critical perspective
o “Wolfgang Sachs(A well known researcher, writer and university teacher in the field of
environment, development and globalisation) described the concept as an oxymoron on the
basis is that endless economic growth and environmental sustainability are intrinsically
contradictory”
 
 
 Brundtland Commission and SD
o Founded in 1983 by the secretary general of the UN by appointing Gro Harlen Brundtland,
former PM of Norway as chairperson
o The commission officially dissolved in 1987 after releasing
 
 
 International conventions and SD
o Principle 11, Stockholm Declaration 1972
 The environmental policies of all states should enhance and not adversely affect the
present or future development potential of developing countries, nor should they
hamper the attainment of better living conditions for all…"
o Principle 4, Rio Declaration
 In order to achieve SD, environmental protection shall constitute an integral part of
the development process and cannot be considered in isolation from it.
PRECAUTIONARY PRINCIPLE

 Principle 15 of the Rio Declaration is the basis for the principle

 Onus of proof: actor/developer/industrialist
 International legal status of this principle is in evolution.
 International courts and tribunals are very much cautious about declaring that the principle
has acquired customary status, only going so far as to suggest that there is a trend towards
making precaution part of custom.
 In the 2011 advisory opinion, the seabed disputes chamber of ITLOS (International Tribunal
for the Law of the Sea) noted that the precautionary approach has been incorporated into a
growing number of international treaties and other instruments, many of which reflect the
formulation of Principle 15.
 Indian courts have embraced certain principles of international and foreign environmental
law-some establishing and others nascent-to be 'essential features of SD', 'imperative for
preserving ecology' and 'part of the environmental law of India'.
 The court requires these to be "applied in full force for protection the natural resources of
this country"
 
 
 
 
 SC and Precautionary principle
o Vellore citizen's welfare forum v UOI 1996
o Taj Trapezium
o Andhra pradesh state polluton control board v prof mv nayadu 1999
o Court on its own motion v UOI
 NGT and Precuationary principle
POLLUTER PAYS PRINCIPLE

 Developed by organisation for economic cooperation and development during 1970s

 It was adopted by OECD in 1972 as an economic principle for allocating the costs of pollution
control.
 The implementation of the polluter pays principle (recommendation adopted on 14th
november 1974)
 Article 191 of the treaty on the functioning of the EU: article 191(2) of the treaty states that
"union policy on the environment shall be based on the precautionary principle and on the
principle that preventive action should be taken, the environmental damage should as a
priority be rectified at source and that the polluter should pay"
 Principle 16 of the rio declaration: "national authorities should endeavor to promote the
internalization of environmental costs and the use of economic instruments, taking into
account the approach that the polluter should, in principle, bear the cost of pollution, with
due regard to the public interest and without distorting international trade and investment"
 Cost allocation and cost internalization from the polluter responsible for the pollution rather
than to the government or to the members of the public.
 Polluter must bear the expenses of carrying out measures decided by public authorities to
bring the environment is in an acceptable state.
 
 
 
 
 Cases
o Rural litigation entitlement kendra v state of UP 1985
 Immediate steps for reclamation of the areas forming part of the limestone
quarries employment of the workmen in the afforesat
o Oleum gas leak 1987
o Bichhri Village case
o Tamil nadu tenneries case
PUBLIC TRUST DOCTRINE

 Prof Joseph L. Sax developed the doctrine.

 Criteria
o Natural resources are in the trusteeship of the state and hence is in under obligation to
maintain all property.
o Trust property shouldn’t sold for any monetary benefit.
o The general public is the beneficiary and hence the trust property must be used in public
interest.
 Cases
o M C Mehta v Kamal Nath 1997 (Span motel case): the court summoned up the powers of the
state are trustee in the following words:- “thus the public trust is more than an affirmation of
state power to use public property for public purposes. It is an affirmation of the duty of the
state to protect the people’s common heritage of streams, lakes, marshlands and tidelands,
surrendering that right of protection only in rare cases when the abandonment of that right is
consistent with the purposed of the trust…”
o MI Builders Pvt Ltd v Radhey Shyam 1999: in this case, the court held that the Lucknow
Mahanagar Palika (Municipal Authority) by allowing an underground shopping complex to
come up below a public park violated the doctrine of public trust and ordered the demolition
of the structures and restoration of die park.
 
 Critique
o Lack of adequate definition : courts in india are yet to provide a reaosbaly comprehensive
definition definition of the doctrine.
o Relevance and application of this doctrine is still unclear. Yet to find explicit place in any
national enviromental law.
o It appears to be a till used by judiciary to review actions of the executive.
o What constitutes ‘public purpose’ and whether it is even possible for natural resource to be
used for a public purpose and be availed for use by the general public.
 Intellectuals Forum, Tirupathi v State of AP 2006: SC observed that the right to
shelter was not ‘so pressing’ if the housing projects that were coming up in public
trust lands, water tanks in this case, were meant for high and middle income group.
 S. Venkatesan v Government of Tamil Nadu 2011: Madra High court upheld the
construction of a bus stand on a part of a water body, as there was a dire need for a
bus stand in the area.
 Kalinga Power Corporation v UOI 2012: HC of Delhi considered coal to be a public
trust property and the government routinely allocates mines to private and public-
sector enterprises.
o The second restriction - that sale of trust property, even in return of a fair cash equivalent, is
not permissible- is of little relevance in the Indian context. The government regularly alienates
natural resources such as minerals and forests in return for money.
o The third and final restriction on the government is that trust property has to be maintained for
particular types of uses. However, the restrictions on how to maintain or use such property are
not consistently applied, example: forests are permitted to be used for non-ore to activities,
such as mining or road construction, after statutory approvals are granted, construction of a
dam for the production of power effects the natural flow of the river.
ENVIRONMENTAL JUSTICE

 “The fair treatment and meaningful involvement of all people regardless of race, colour, national
origin or income with respect to the development, implementation \ and enforcement of environmental
rules, regulations and laws.
 Narmada bachao andolan case
o Narmada Bachao Andolan - social movement(tribal people, adivasis, farmers,
environmentalists and human rights activists) against the Sardar Sarovar dam being built
across the Narmada river, Gujarat.
o Focus of the movement - saving the tress and the fauna, rehabilitation of the poor people
living around the area.
o Movement started in 1986 by a social worker named Medha Patkar when the world bank lent
india 450 million USD for the Sardar Sarovar project.
o Benefits
 Narmada has the potential to supply drinking water to the towns and cities of
Gujarat, to irrigate the dry parts of Gujarat and provide flood protection has well.
 Sardar Sarovar dam alone would irrigate almost 1.8 million hectares of land in
Gujarat and an additional 73000 hectares in the dry neighbouring state of
Rajasthan.
 To raise agricultural growth rates to high levers over the next decade.
o Sc
 The court initially rules the decision in the Andolan’s favour thereby effecting an
immediate stoppage of work at the dam and directing the concerned states to first
complete the rehabilitation and replacement process.
 The SC also deliberated on this issue further for several years but finally allowed the
construction to proceed, subject to conditions.
 The court introduced a mechanism to monitor the progress of resettlement with the
raising the height of the dam dam through grievance redressal authorities in each of
the party states
 The court’s final line of order states hat “very endeavour shall be made to see that
the project is completed as expeditiously as possible”
 
 
 Kundankulam Nuclear Plant case: G Sundararajan v Union of India 2013
o In 1990, soon after the project was announced, the first protest against it was held by nearby
residents, opposing the diversion of water for the reactors from the Pechiparai dam in
Kanyakumari district.
o The fishing community too had apprehensions regarding threat to their livelihood from the
project.
o In 2011, following the Fukushima disaster in Japan in which nearabout 15000 people were
killed, women residents of Idinthakarai village of Tirunelveli district led to huge protests
against the KNPP.
o The hen Tamil Nadu government came down heavily on the protestors and filed sedition
charges against them.
RIGHTS

 Right to environment and right of environment

 Right to environment is Ecocentric concept
o Right of natural resources: water, lakes, rivers, forests, animals etc.
o MC Mehta v Kamal Nath 1996
 “any disturbance of the basic environmental elements, namely, air water and soil,
which are necessary for “life”,w old be hazardous to “life” within the meaning of
article 21 of the constitution”
o Animal welfare board of India v A Nagaraja
 This particular case had two sets of cases, one challenging the division bench
judgment of the Madra Hc challenging the validity of the Tamil Nadu Registration of
Jallikattu act and few writ petitions challenging the validity of Ministry of
environment and forests (hereafter referred to as MoEF) notification dated
11.07.2011 prohibition all bullock cart races, games, training, exhibition etc and
another case challenging the division bench judgment of the Bombay high court
upholding the MoEF notification.
 The SC on banned hundreds of years of old Jallikattu- bullfights and bullock cart
racing composed amid celebration in Tamil Nadu and neighbouring states.
o Md Salim v State of Uttarakhand
 In this case the court noticed that despite the decision of the Uttarakhand HC dated
05.12.16, the states of UP and Uttarakhand have not cooperated with the CG to
constitute a Ganga management board
 The court in exercise of its parens Patriae juridiction, declared the rivers and all their
tributaries streams, every natural water flowing with continuous or intermittent flow
as Juris tic/legal persons/living entities, having the status of a legal person with all
corresponding rights, duties and liabilities of a living Enron’s read with articles 48A
and 51 A(g) of the constitution.
 The director of NAMAMI Gange, the cheied Secretary of State of Uttarakhand and
the advocate general of the state of Uttarakhand were declared as persons in loco
parentis, i.e., the human face bound to protect, conserve, preserve, uphold the statues
and promote the health and well being of Ganga and Yamuna.
 The court made it clear that “river Ganda and Yamuna are breathing, living and
sustaining the communities from mountains to sea” and the constitution of Ganga
management board has become all the more necessary for the purpose of irrigation,
rural and urban water supply, hydro power generation, navigation and industries as
well.
o Lalit miglani v state of Uttarakhand
 The court by invoking parens patriae jurisdcition, declared the glaciers including
Gangotri and Yamunotri, reviver, streams, revulets, lakes, aire, meadows, Adele’s,
jungles, forest wetlands, grasslands, springs and waterfalls are legal entity/person/
jurisdiction person/moral person/ artificial person having the status of a legal person,
with all corresponding rights
 Rural litigation and entitlement Kendra v state of UP
o The first case in which right to live in a healthy environment as part of article 21 was
recognised by the court.
o The SC had received a writ petition regarding the unauthorised and illegal operation of lime-
stone quarries in the Mussoorie Hills range, India.
o It was argues that the quarries caused a hazard to healthy environment and affected the
perennial water springs.
o During the presidency of the Writ petitions, the court had appointed a Committee for the
purpose of inspecting the lime stone quarries mentioned in the Writ petitions. The GOI had
also appointed a working……
 Quality of life and right to environment
o Subhash Kumar v State of Bihar 1991
 Environmental literacy
o Mc Mehta v union of India
 Directions to remove environmental illiteracy or to creat environmental awareness
were given..
ENVIRONMENTAL DUTIES

 Article 51-A(g)
 Article 37
 Article 39-e
 Article 47
 Article 48-A
 Article 49
 Article 51-c
 
 Vellore citizen’s welfare forum v union of India
o The forum has files a PIL against 900 tanneries against severe pollution of soil and water due
to discharge of untreated sewage discharge in 5 districts of Tamil Nadu.
o The Palar river in Tamil Nadu which was main source of potable water in that area, used for
consumption and irrigation was completely polluted due to this tannery.
o A survey of sewage water was done and 176 different types of chemicals were found present
in the tyrannies water.
o 35000 hectares of land near the tannery was declared unfit for cultivation and 350 wells
present in that area was declared unsafe for consumption.
o An order of the Tamil Nadu pollution control board to buil an effluent plant for proper
disposal of effluents was left unheard
o Issues
 Whether polluter based principle and precautionary principle as important part of
sustainable development holds any place in Indian law?
 Upto what extent we can compromise environment safety for future economic
development?
 Whether tanneries should be allowed to keep on working at expense of life of lakhs
of people residing there?
o Court realised the harm the Tanner is are causing to the Palar river they gave the judgement in
favour of velour forum and ordered the tanneries to deposit a sum of 10,000 as fine.
o Even after shutting down of the tanneries, they set up singular contamination control devices
and continued to operate.
o No tanneries will work unless the set up contamination control devices under the guidance of
pollution control boards.
o SC directed madras HC to constitute a special bench(green bench) to deal with this case and
other environmental matters. The working of the “green benches functioning Calcutta, MP
and some other high courts are mentioned in this case.
o The registry was directed to send the records to the registry of the madras HC matter as a
portion under art 226 and deal with it in accordance with law and also in terms of the
directions issued by the SC.
o Parties were given liberty to approach the high court as and when necessary.
 
 
 
 Approach of judiciary towards directive principle and environmental protection
o Bandhua Mukti morcha v union of india
 SC while dealing with inhuman and pitiable conditions of te labourers working in
stone quarries held that the right to live with human dignity enshrined in art 21,
derives its life-breath from the directive principles of the state policy and particularly
clauses (e) And (f) of article 39 and article 41 and 42
o T. Damodhar rao v the special officer municipal cooprotario of Hyderabad
 Protection of the environment is not only the duty of the citizen but it is also the
obligation of the state and all other state organs including courts. In that extent,
enviromental law has succeeded in unshackelign man’s right to life and personal
liberty from the clutches of common law theory of individual ownership.
o Satchidanandan Pandey v state of wB
 Whenever problem of ecology is Brigu be free the court, the court is bound to bear in
mind art 48A which enjoins that “the state shall endeavour to protect and improve the
environment and to safegaurds the forests and wildlife of the country,” and art
51A(g) which proclaims it to be the fundamental duty of every citizen of india “to
protect and improve the natural environment including forests, lakes, rivers and
wildlife and to have compassion for living creatures”. When the court is called upon
to give effect to the directive Principle and the fundamental duty, the court is to not
shrug its shoulder and say that priorities are a matter of policy and so it matter for the
policy making authority