Abstract
The paper emphasizes on the issue of the environment being constantly degraded by the development activities going across the world. The author co-relates the environmental pollution and development and finds out various events across the globe related to the issue. The judicial and constitutional aspects of the environment protection have also been discussed in the paper. The author concludes with suggestions and a conclusion is also drawn up.
Introduction
“Development which has no regard for whom or what it harms is not development. It is the opposite of progress, damaging the Earth’s capacity to support us and the rest of its living system.” – George Monbiot
Ecology and economy are both derived from the Greek word oikos, which means a house or dwelling. Our survival depends on the rational management of this home: the space in which life can be sustained.[1] In other words, a clean and pollution-free environment is one of the most basic needs of the human race for a proper and healthy sustenance. Article 21 of the Indian Constitution also emphasizes on the fact, especially after the verdict of the Supreme Court in the much-talked Maneka Gandhi v. Union of India Case[2], a proper judicial interpretation of which brings the right to clean environment within the ambit of right to life. It can be well stated that a clean environment is by far much-needed.
But, in the developing era of today, a thrust for development is being felt at a global level. Article 8(1) of The United Nations Declaration on the Right to Development 1986 emphasizes on the same, and imposes on the member States an obligation to undertake all necessary measures for the realization of the Right to Development, and to ensure inter alia, equality of opportunity for all in their access to basic resources, education, health services, food, housing, employment and the fair distribution of income.[3] Development, in itself, is inseparable part of the human race, and one of the most vital requirements for a civilized society. But, there is always the other side of the coin. The development process has always been a challenge for sustainable growth of the environment, which as per the Brundtland Report of 1987 (formally known as World Commission on Environment and Development), is defined as ‘development that meets the needs of the present without compromising the ability of future generations to meet their own needs.’[4] It does include the need for a clean environment. But, the development work, be it pertaining to construction, mining, quarrying or others, always poses a threat to the concept of sustainable development and there is an urgent need to look into the ins and outs of the issue.
Co-relation between development and environment
Development comes through industrialization, which in itself is one of the biggest factors behind the degradation of environment, be it in terms of depletion or pollution. Development and environment cannot be taken as separate challenges. Comparative study of many nations in terms of Environmental Sustainability Index shows that the environment has been adversely affected during process of their economic development which has brought many local and global environmental problems in the world.[5] Environmental Sustainability Index (ESI) is a composite index tracking a diverse set of socioeconomic, environmental, and institutional indicators that characterize and influence environmental sustainability at the national scale.[6] The ESI score of a country is directly proportional to the favorable environmental conditions in a country, i.e., higher the ESI score of a country, better is the environmental condition prevailing in the region.[7] The co-relation between development and environmental conditions of a country can be established by the fact that the 2005 reports of ESI reveals that developed countries occupy lower ranking in ESI, whereas comparatively less developed countries had a better rank in terms of ESI categorization.[8] Also, the EIA (Environmental Impact Assessment) reports, which help in evaluation of the potential impacts of development projects on the environmental system,[9] differ in different countries as per their level of development.[10] Besides, the industrialized countries are the biggest emitters of green house gases, where China tops the list, which overtook the United States in 2006.[11] It can be easily deduced that developed nations have been facing the environmental issues the most, and industrialization is the most contributing factor to the pollution.
Rapid economic growth leads to urbanization, industrialization and many other development activities. These factors lead to the degradation of environment in several ways, like emission of harmful gases (air-pollution), sewage discharge in water-bodies (water pollution), dumping of wastes on land (land pollution) etc. It harms the environment in various ways like ozone depletion, global warming, acid rain etc. These environmental risks, in turn lead to other fatal hazards. For instance, Global Circulation Models (GCM), that calculates and predicts what climate patterns will look like in a number of years[12], reports that global temperature can rise 1.5˚ C to 5.5˚ C by year 2030, which can provoke more havoc situations, like floods, droughts, heat waves, etc.[13] Thus, development requires a more vigilant look towards the environmental conditions of the region.
Movements in India against development projects and their relation with environment
In a country like India, issues have often been arising with respect to the development projects, which have often been related to environmental issues, either directly or indirectly. One of the most popular environmental movements in India is Narmada Bachao Andolan, started in 1985, against the construction of huge dam on the Narmada river. The proposed Sardar Sarovar Dam and Narmada Sagar would have displaced more than 250,000 people.[14] It was widely protested and the reasons for this were cited as “non-fulfillment of basic environmental conditions and the lack of completion of crucial studies and plans.”[15] The Supreme Court, in the case, i.e., Narmada Bachao Andolan v. Union of India[16] stated that:
“The adverse impact on the environment can have disastrous consequences for this generation and generations to come… This Court cannot place its seal of approval on so vast an undertaking as the Project without first ensuring that those best fitted to do so have had the opportunity of gathering all necessary data on the on the environmental impact of the Project and of assessing it. They must then decide if environmental clearance to the Project can be given, and, if it can, what environmental safeguard measures have to be adopted, and their cost.”[17] The decision of the Court clearly states the hidden environmental degradation behind the development projects, and also emphasizes upon the need to safeguard the environment. Another such issue which brought development and environment to clash with each other was Tehri Dam Andolan, (Tehri Bandh Virodh Sangarsh Samiti v. State of Uttar Pradesh) in which the construction of dam was widely protested by the environmental organizations and the local people. Again, like the Narmada Bachao Andolan, displacement of people was the main issue, but environmental concerns were also raised, as the dam was planned in the Central Himalayan Seismic Gap, a major geologic fault zone, which was the site of a major earthquake in October 1991. The Apex Court approved the project, but only after several terms and conditions, also ensuring environmental measures.[18] Similar situation was witnessed in other cases like Goa Foundation v. Konkan Railway Corporation[19], where the alignment of the Konkan Railway in certain parts of Goa was protested on the ground that it would cause erosion of soft rocks, disturbance to the mangroves, deterioration of land quality, and destabilization of the tidal basin.[20]
Judicial and Constitutional aspects of environmental concern vis-à-vis development in India
In India, environmental protection has often been judicially guaranteed when there has been a clash between aspects of development and environment. There are various judicial precedents taking care of the environmental concerns. For instance, in Rural Litigation and Entitlement Kendra vs. State of U.P.[21] the Supreme Court allowed a mine to operate until the expiry of lease as exceptional case on condition that land taken on lease would be subjected to afforestation by the developer. But as soon as the notice was brought before the court that they have breached the condition and mining was done in most unscientific way, the Supreme Court directed the lessee to pay a compensation of three lacs to the fund of the monitoring committee.[22] In M.C. Mehta v. Union of India[23], the Apex Court indirectly dealt with the question of sustainable development and stated that: “Life, public health and ecology has priority over unemployment and loss of revenue problem.”[24] In Goa Foundation v Diksha Holdings Pvt. Ltd the court observed that with a view to protect the ecological balance in the coastal areas, notifications having been issued by the Central Government, there ought not to be any violation and prohibited activities should not be allowed to come up within the area declared as CRZ notification. The court also emphasized that no activities which would ultimately lead to unscientific and unsustainable development and ecological destruction should be allowed.[25] In a landmark case Tarun Bhagat Singh v. Union of India, the petitioner through public interest litigation (PIL) brought to the notice of the Supreme Court that the Government of Rajasthan, though empowered to make rules to protect environment, failed to do so and in contrary allowed mining work to continue within the forest area. Consequently, the Supreme Court issued directions that no mining work or operation could be continued within the protected area.[26] Similarly, in Govind V. Shanti Sarup[27], Section 133 of the Code of Criminal Procedure was used by the Court to preserve the environment in the interest of “health, safety and convenience of public at large.”
The Indian judiciary has often been vigilant towards the protection of environment and gradually various principles and policies towards the safeguard of environment have judicially evolved. Some of them are the absolute liability of hazardous industries, precautionary principle, polluter pays principle etc. The absolute liability principle, was first stated in India in case of M.C. Mehta v. Union of India, where Justice Bhagwati had incorporated a stricter principle than the principle of strict liability given in Ryland v. Fletcher and the exceptions given under the latter case were held not applicable in case of an industry undertaking a hazardous activity being liable without any sort of negligence. The same rule was also applied in cases like those of Bhopal Gas Tragedy. The Court stated as follows:
“If the enterprise is permitted to carry on an hazardous or inherently dangerous activity for its profit, the law must presume that such permission is conditional on the enterprise absorbing the cost of any accident arising on account of such hazardous or inherently dangerous activity as an appropriate item of its overheads. Such hazardous or inherently dangerous activity for private profit can be tolerated only on condition that the enterprise engaged in such hazardous or inherently dangerous activity indemnifies all those who suffer on account of the carrying on of such hazardous or inherently dangerous activity regardless of whether it is carried on carefully or not. This principle is also sustainable on the ground that the enterprise alone has the resource to discover and guard against hazards or dangers and to provide warning against potential hazards.”
On the other hand, the precautionary principle emphasizes on being vigilant towards environmental hazards. The 1998 Wingspread Statement on the Precautionary Principle summarizes it as: “When an activity raises threats of harm to the environment or human health, precautionary measures should be taken even if some cause and effect relationships are not fully established scientifically.”[28] In Vellore Citizens Welfare Forum v. Union of India[29], it was stated by the Court:[30]
“We are however, of the view that “The Precautionary Principle” and “The Polluter Pays Principle” is essential features of “Sustainable Development.” The “Precautionary Principle” – in the context of the law – means:
Where there are threats of serious and irreversible damage, lack of scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation.
The “onus of proof” is on the actor or the developer/industrialist to show that his action is/was environmentally benign.
We have no hesitation in holding that the precautionary principle and the Polluter Pays Principle are part of the Environmental Law of the Country. “
The Polluter Pays Principle the enterprise engaged in the hazardous industry would also compensate for the ecological imbalance caused due to the environment in case of an industrial mishap, apart from compensating for the victims. In M.C. Mehta v. Union of India[31], it was stated by the Court that:[32]
“The ‘Polluter Pays’ principle demands that the financial costs of preventing or remedying damage caused by pollution should lie with the undertakings which cause the pollution, or produce the goods which cause the pollution, Under the principle it is not the role of Government, to meet the costs involved in either prevention of such damage, or in carrying out remedial action, because the effect of this would be to shift the financial burden of the pollution incident to the taxpayer.”
In Vellore Tanneries Case, the Court stated: [33]
“The ‘Polluter Pays Principle’ as interpreted by this 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. Remediation of the damaged environment is part of the process of ‘Sustainable Development’ and as such the polluter is liable to pay the cost to the individual sufferers as well as the cost reversing the damaged ecology.”
Also, there are various constitutional provisions in India which guarantees the protection of environment. For instance, Article 48A, incorporated by the 42nd amendment, ensures protection and improvement of environment and safeguarding of forests and wild life. Article 51A declares protection of environment as a citizen’s fundamental duty. Besides, the seventh (entries 17-A, 17-B, 20-A), eleventh (entries 2,3,6,7,11,12,15 and 29) and the twelfth (entry 8) Schedules of the Constitution have provisions regarding ecological protection.
Global efforts on development with respect to ecological balance
The need for a healthy environment is being realized internationally since decades. The examples of such efforts can be dated back to the Stockholm Conference of June 1972, which was attended by 113 states.[34] It led to Stockholm declaration which emphasized on the protection of environment against development, along with the foundation of United Nations Environment Programme.[35] The UN Conference on the Environment and Development, held at Rio de Janeiro in 1992, which was attended by all the 176 UN member States at that time, led to the formation of treaties like the UN Framework Convention on Climate Change (UNFCC) and the Convention on Biological Diversity, and the Rio Declaration talked about the right to a healthy environment and the right to development.[36]
Again, in 1993, the Right to Development and the World Human Rights Conference took place in Vienna in the same direction. Various other international events and seminars like the World Summit of on Sustainable Development, Johannesburg, the World Summit Outcome, 2005, along with various UN declarations have emphasized on the need to protect the environment against the thrust for development. Apart from these, several treaties and conventions like the Antarctic Treaty (Washington, 1959), Convention on the conservation of Antarctic Marine living Resources (Canterna, 1980), Convention for the protection of the Ozone Layer (Vienna, 1985), Protocol on substance that deplete the Ozone Layer (Montreal, 1987), Amendments to the Montreal protocol on substance that Deplete the Ozone layer (London, 1990), International tropical inter-Agreement (Geneva, 1994), Protocol on Environmental protection to the Antarctica Treaty (Madrid, 1991) etc. have taken place on the global level have often been emphasizing on the same.
Conclusion and suggestions
Development, be it economic or social, is a prime requirement of human race. In fact, economic prosperity often contributes to sustainable development.[37] But, only the economic growth at reduced environmental impact can be said to be a part of sustainable development. Hence, economic growth and environmental impact must be segregated by advanced and ecologically efficient technology.[38] There has often been conflict on the issue of development projects in which environmental concern has always been in the background. Thankfully, the judiciary has often been vigilant enough to take care of the environmental needs and put required check on the projects.
But, there is a need to find a solution to this issue as development is a never-ending process. Technologically efficient machines need to be brought up and proper environmental measures must be taken up at the sites. Moreover, the individuals should also come forward towards the safeguard of the environment. Also, the developed countries should provide new and additional financial assistance and access to clean technology to the developing nations. Harsh penalty should be subjected to the violators of environmental standards. Other steps like implementation of proper technology, sustainable agricultural and rural development, sustainable forest development, strengthening the role of children and youth in sustainable development etc. need to be implemented.
Also, Article 21 of the Indian Constitution states: “No person shall be deprived of his life or personal liberty except according to procedure established by law.” Thus the right to live in a clean and healthy surrounding is bestowed to us and one is free to seek judicial remedy in case of infringement of the right. As per Article 32 of the Indian Constitution, any citizen or a group of people can initiate a Public Interest Litigation with the Apex Court of India in case an occurrence of environmental degradation or contamination takes place.
Ultimately, it comes on us humans to conserve the environment. It is our duty and obligation to take care of our surroundings and make the development sustainable.
“Don’t blow it – good planets are hard to find.”[39]
By: Avinash Kumar, National Law University, Delhi.
References
[1] P.H.K. Srivastava, “Environmental Problems and it’s Valuation”, A.K. Singh, (ed.), ENVIRONMENTAL ECONOMICS: VARIOUS DIMENSIONS, p. 71.
[2] AIR 1978 SC 597.
[3] Taken from: http://www.un.org/documents/ga/res/41/a41r128.htm, (last visited March 28, 2012).
[4] World Commission on Environment and Development, Our Common Future, p 40.
[5] Rajesh Keshar Khanal, “Environmental Sustainability Index (ESI) and It’s Need in the Developing Economies”, Arun Kumar Singh, (ed.), ENVIRONMENTAL ECONOMICS: VARIOUS DIMENSIONS, pp. 88-89.
[6] http://www.yale.edu/esi/ (last visited March 29, 2012).
[7] Supra note 5.
[8] Ibid p. 91.
[9] Dr. Madabhushi Sridhar, ENVIRONMENTAL EMPOWERMENT, 1st ed. 2009, p. 25.
[10] Neil Clark, THE INTERNATIONAL LAW OF ENVIRONMENTAL IMPACT ASSESSMENT, 1st ed. 2008, p. 42.
[11] http://www.nytimes.com/2007/06/20/business/worldbusiness/20iht-emit.1.6227564.html (last visited March 28, 2012).
[12] http://www.woodrow.org/teachers/help/temp_presentations/wetherald/WhatisaGlobalCirculationModel.htm (last visited March 26, 2012).
[13] P.H.K. Srivastava, “Environmental Problems and it’s Valuation”, A.K. Singh, (ed.), ENVIRONMENTAL ECONOMICS: VARIOUS DIMENSIONS, p. 71.
[14] http://www.ecoindia.com/education/narmada-bachao-andolan.html (last visited March 28, 2012).
[15] Fisher, William (1995). Toward Sustainable Development: Struggling Over India’s Narmada River. M. E. Sharpe. pp. 157–158.
[16] AIR 2000 SC 3751.
[17] AIR 2000 SC 3751, p. 3770.
[18] P. Leelakrishnan, ENVIRONMENTAL LAW IN INDIA, 3rd ed. 2008, pp. 339-342
[19] AIR 1992 Bom 471.
[20] Supra note 18, p. 343.
[21] AIR 1988 SC 2187.
[22] http://www.legalserviceindia.com/articles/jud.htm (last visited April 3, 2012).
[23] 1987 AIR 1086.
[24] Dr. G. Indira Priya Darsini and Prof. K. Uma Devi, ENVIRONMENTAL LAW AND SUSTAINABLE DEVELOPMENT, 1st ed. 2010, p. 284.
[25] http://www.tax4india.com/indian-laws/environmental-law/environment-protection/environment-protection-2.html (last visited April 7, 2012).
[26] http://jurisonline.in/2010/09/sustainable-development-a-conflict-between-environment-and-development/ (last visited April 9, 2012).
[27] AIR 1957 SC 1943.
[28] http://www.sehn.org/ppfaqs.html (last visited April 3, 2012).
[29] AIR 1996 SC 2715.
[30] http://www.ielrc.org/content/e9607.pdf (last visited April 11, 2012.
[31] (1987) 1 SCC 395.
[32] http://legalservicesindia.com/article/article/fundamental-principles-of-environmental-protection-755-1.html (last visited March 22, 2012).
[33] http://www.ielrc.org/content/e9607.pdf (last visited March 13, 2012).
[34] Nico Schrijver, THE EVOLUTION OF SUSTAINABLE DEVELOPMENT IN INTERNATIONAL LAW: INCEPTION, MEANING AND STATUS, 1st ed. 2008, p.43.
[35] Ibid, pp. 44-45.
[36] Ibid, pp. 68-69.
[37] Raj Kumar Sen and Somnath Hazara, ENVIRONMENTAL ECONOMICS AND SUSTAINABLE DEVELOPMENT, 1st ed. 2011, p. 65
[38] Ibid, pp. 65-66.
[39] Quoted in TIME.
