With the contemporary changes, the international agreements have sought to acquire a special source of reference for The Supreme Court of India while deciding cases and when it comes to the cases pertaining to environment, the International protocols on environment have a very special role to play especially when India is a signatory to such a protocol. It is basically because they tend to reflect the key government policies on important environmental issues. International environmental agreements guide the Indian policies in a way that they enable countries to work together to address vital environmental issues that are trans boundary or global in nature, such as sustainable development, air pollution, climate change, protection of the ozone layer, ocean pollution etc. Our domestic actions alone are often insufficient to protect our environment, our resources, and our health. We need to work with other countries to develop common solutions to international environmental problems that impact us directly. Moreover, it enables a country’s Court of Justice to ensure fairness by referring these protocols in the cases that arise.
Therefore, the 1992 Rio Declaration on Environment and Development is one such international agreement to which India is a signatory and it is stated while dealing with environment related cases that our Indian Courts come across. This declaration defines the rights of the people to be involved in the development of their economies, and the responsibilities of human beings to safeguard the common environment. It builds upon the basic ideas concerning the attitudes of individuals and nations towards the environment and development, first identified at the United Nations Conference on the Human Environment (1972). The Rio Declaration states that long term economic progress is only ensured if it is linked with the protection of the environment. If this is to be achieved, then nations must establish a new global partnership involving governments, their people and the key sectors of society. Together human society must assemble international agreements that protect the global environment with responsible development.
There are a number of principles to the Rio Declaration. However, the most important principles laid down under this Declaration are inter generational equity(Principle 3), precautionary principle(Principle 15) and last but not the least the Polluter pays principle(Principle 16) which throw light on the concept of sustainable development and its utmost significance. These are as follows:
- Principle 3
The right to development must be fulfilled so as to equitably meet developmental and environmental needs of present and future generations.
- Principle 15
In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.
- Principle 16
National authorities should endeavour 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.
Thus, from the above it can be ascertained that the primary objective of this protocol is to ensure sustainable development. It also focuses on the imperative mutual need of economic development along with environmental preservation. This Rio declaration is very much in consonance with the Indian policies on environment which is evident from the fact that the Judiciary in India, more precisely, the Supreme Court and the High Courts have played an important role in preserving the doctrine of ‘Sustainable Development’ which as stated is the crux of this declaration.
The first case on which the apex court had applied the doctrine of ‘ Sustainable Development’ was Vellore Citizen Welfare Forum vs. Union of India[1]. The Supreme Court, in the instant case acknowledged that the traditional concept that development and ecology are opposed to each other, is no longer acceptable. Sustainable development is the answer. Some of the salient principles of “Sustainable Development” as culled out from Brundtland Report and other international documents, are Inter-Generational Equity. This Court observed that “the Precautionary Principle and the Polluter Pays Principle are essential features of Sustainable Development. Nation’s progress largely depends on development, therefore, the development cannot be stopped, but we need to control it rationally. No government can cope with the problem of environmental repair by itself alone; peoples’ voluntary participation in environmental management is a must for sustainable development. There is a need to create environmental awareness which may be propagated through formal and informal education. We must scientifically assess the ecological impact of various developmental schemes. To meet the challenge of current environmental issues; the entire globe should be considered the proper arena for environmental adjustment. Unity of mankind is not just a dream of the enlightenment but a biophysical fact.”
But at the same time it would be unwise to hold that the courts always favour environment without giving any significance to the development aspect when dispute arises between environment and development.
In M.C.Mehta vs. Union Of India [2]the Supreme Court issued directions towards the closing of mechanical stone crushing activities in and around Delhi, which was declared by WHO as the third most polluted city in the world. However it realised the importance of stone crushing and issued directions for allotment of sites in the new ‘crushing zone’ set up at village Pali in the state of Haryana. Thus, it is quite obvious that the courts give equal importance to both ecology and development while dealing with the cases of environmental degradation.
However, considering the today’s scenario the Indian judiciary till today refer to the international agreements and declarations related to environment while deciding cases which involve the conflict between development and environmental concerns. The very recent Supreme Court judgements include Ors vs State Of West Bengal[3] on 14.01.2013, where two public interest litigation petitions were filed against the arbitrary, illegal and purported action in building up projects on the part of the respondents resulting in environmental pollution and destruction of ecological balance of the environment. It was submitted by the petitioners that the writ petition has been filed for protecting the ecological balance and to prevent environmental pollution in respect of the said water area and lands adjoining to the said water area for the benefit of the public of the locality and also for protecting illegal conversion of the said land of water area by way of changing the nature and character and mode of use the said water area and existing canals which operates as the drainage system in respect of Hoogly and as well as reservoir during the rainy season. The respondents, however, have taken the plea that the actions taken by the Government were in pursuance of urgent needs of development. The debate between the developmental and economic needs and that of the environment is an enduring one, since if environment is destroyed for any purpose without a compelling developmental cause, it will most probably run foul of the executive and judicial safeguards. However, this Court has often faced situations where the needs of environmental protection have been pitched against the demands of economic development. In response to this difficulty, policy makers and judicial bodies across the world have produced the concept of ‘sustainable development’. This concept, as defined in the 1987 report of the world Commission on Environment and Development (Brundtland Report) defines it as ‘Development that meets the needs of the present without compromising the ability of the future generations to meet their own needs’. Subsequently the Rio Declaration on Environment and Development, passed during the Earth Summit at 1992, to which also India is a party, adopts the notion of sustainable development. Principle 4 of the declaration states:
In order to achieve sustainable development, environmental protection shall constitute an integral part of the development process and cannot be considered in isolation from it.”
Thus, treating the principle of sustainable development as a fundamental concept of Indian law, it was opined that the development of the doctrine of sustainable development indeed is a welcome feature but while emphasizing the need of ecological impact, a delicate balance between it and the necessity for development must be struck. Whereas it is not possible to ignore inter- generational interest, it is also not possible to ignore the dire need which the society urgently requires.” Henceforth, the Court held that the respondents have to ensure that no water logging takes place in the area in question and appropriate canals and/or drainage are provided so that no inconvenience is caused to the local inhabitants and the petitions were disposed off.
In another case, Orissa Mining Corporation Ltd. vs Ministry Of Environment & Forest [4]on 18 April, 2013, where Orissa Mining Corporation (OMC), a State of Orissa Undertaking, has approached this Court seeking a Writ of Certiorari to quash the order passed by the Ministry of Environment and Forests (MOEF) dated 24.8.2010 rejecting the Stage-II forest clearance for diversion of 660.749 hectares of forest land for mining of bauxite ore in Lanjigarh Bauxite Mines in Kalahandi and Rayagada Districts of Orissa and also for other consequential reliefs. With reference to the International protocols on environment, the Court opined that Apart from giving legitimacy to the cultural rights by 1957 Convention, the Convention on the Biological Diversity (CBA) adopted at the Earth Summit (1992) highlighted necessity to preserve and maintain knowledge , innovation and practices of the local communities relevant for conservation and sustainable use of bio-diversity, India is a signatory to CBA. Rio Declaration on Environment and Development Agenda 21 and Forestry principle also encourage the promotion of customary practices conducive to conservation. The necessity to respect and promote the inherent rights of indigenous peoples which derive from their political, economic and social structures and from their cultures, spiritual traditions, histories and philosophies, especially their rights to their lands, territories and resources have also been recognized by United Nations in the United Nations Declaration on Rights of Indigenous Peoples. STs and other TFDs residing in the Scheduled Areas have a right to maintain their distinctive spiritual relationship with their traditionally owned or otherwise occupied and used lands. Thus, the Court felt that the State has got a duty to recognize and duly support their identity, culture and interest so that they can effectively participate in achieving sustainable development.
In another most recent case, G.Sundarrajan vs Union Of India & Ors. [5]on 6 May, 2013, where appeals concerned with an issue of considerable national and international importance, pertaining to the setting up of a nuclear power plant in the South-Eastern tip of India, at Kudankulam in the State of Tamil Nadu. The incidents of Union Carbide, Bhopal might be haunting the memory of the people living in and around Kudankulam, leading to large-scale agitation and emotional reaction to the setting up of the Nuclear Power Plant (NPP) and its commissioning. The nature of potential adverse effect of ionizing radiation, adds to fears and unrest. In the instant case, apart from the Rio Declaration the Stockholm Conference was referred too in a manner saying that The Stockholm Conference not only brought into focus the human rights approach to the problem of environmental protection but also recognized the linkage between the development and environment from which the concept of sustainable development has emerged. The Conference noticed that while man is both creature and moulder of this environment, rapid advances in science and technology had invested man with the potent power to transform his environment in countless ways and on an unprecedented scale. The benefits of development and opportunity to enhance quality of life, if wrongly or carelessly used, man could do incalculable harm to human beings and to the environment. The responsibility of the people to protect and improve the environment for the present and the future generations was also recognized. Later the Rio Declaration 1992 re-stated the principles of Stockholm Conference and high-lighted the importance of intensifying the efforts at the global, regional and national levels to protect and improve environment along with development. Following the Stockholm Conference the second landmark on environmental protection and development was United Nations Conference on Environment and Development (UNCED), 1992 (Rio Summit). The Conference was held at Rio (Brazil) in the year 1992 which addressed the twin problems of environment and development. Rio declaration sets out general non-binding commands for sustainable development i.e. human beings who are at the centre of sustainable development concerns have to exercise their right to healthy and productive life in harmony with nature. The Rio Conference also high-lighted the principle of inter generational equity. Principles like precautionary principle so as to prevent the environmental degradation and the principle of polluter pays. i.e. to bear the cost of pollution with due regard to public interest were high-lighted. The Conference resulted in conclusion of a treaty on climate change with a general recognition of the importance of curbing emission of green house gases, another treaty on bio-diversity aiming at the preservation of flora and fauna was also concluded.
The Rio Conference also adopted Agenda 21. United Nations General Assembly (UNGA) following the Rio Declaration and Agenda 21 created a Commission on Sustainable Development under the United Nations Economic and Social Council to ensure the effective implementation at the local, national, regional and international levels of what had been agreed at the Rio Conference, to ensure follow up of Rio Summit, to enhance adequate international, scientific and technological cooperation to catalyse inter-governmental decision making capacity to ensure regular and effective reporting on the Agenda 21 and at the national, regional and global levels. Thus, the Court held that each and every aspect of the matter shall be overseen, including the safety of the plant, impact on environment, quality of various components and systems in the plant before commissioning of the plant. A report to that effect be filed before this Court before commissioning of the plant and the appeals were accordingly disposed of without any order as to costs.
Above all, going through the aforementioned judgements of the Supreme Court of India, it is evidently observed that the international protocols or declarations have a huge impact on the Indian policies and cases as they automatically come into the picture the moment the environmental matters are raised in the Courts because they complement the Indian environmental laws to a great extent and also provide a wider angle to look at such environment related cases thereby, widening our horizons towards the same.
[1] [1996] 5 SCC 647
[2] [1991] 2 SCC 137
[3] Sl. No.11 W.P 17686(W) of 2009 & W.P 2549 (W) of 2011
[4] WRIT PETITION (CIVIL) NO. 180 OF 2011
[5] S.L.P. (C) No.32013 of 2012
About the Author
Shakha Jha is a IV Year law student pursuing B.A. LL.B. from Symbiosis Law School, Pune. She is keenly interested in researching on varied subjects. She also holds a diploma in Intellectual Property Laws and has authored four papers. She is presently working as a Research Associate with Alexis Department of Public Policy.
