Environmental Law, Principle of Sustainable Development PDF

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An Overview of Environmental Law in India...

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INTRODUCTION: Throughout the centuries in India, there has been respect for the environment and this has been reflected in the lives of people and also embodied in our cultures and religion. However in recent times there has been an exponential expansion in environmental degradation mainly because of industrial growth and overpopulation. Most of the scholars trace the growth of Indian environmental jurisprudence to the United Nations Conference on the Human Environment held at Stockholm in 1972. India was a participant to this conference and this conference underlined the need of India and other states to adopt environmental measures which would be essential to deal with the environmental hazards that would be an inevitable consequence of development. In light of India’s international obligations arising from the Stockholm Conference, the Forty-Second Amendment to the Indian Constitution in 1976 introduced explicit principles of environmental protection. Articles 48A and 51A(g) of the Constitution enshrined these environmental protection measures. Article 48A, part of the Directive Principles of State Policy, obligated the State to protect and improve the environment. On the other hand, Article 51A(g) obligated citizens to undertake the same responsibilities. This constitutional recognition of environmental protection was also followed by a number of important legislations geared to deal with specific environmental problems. The Water (Prevention and Control of Pollution) Act of 1974 was the first example of a legislation specifically geared towards environmental protection. Other major enactments which followed in the followed included The Forest (Conservation) Act), 1981 The Air (Prevention and Control of Pollution) Act, and 1986 (The Environment (Protection) Act.

PRINCIPLES OF SUSTAINABLE DEVELOPMENT: Salient principles of sustainable development as culled out from the Bruntland report and other international documents such as Rio Declaration and Agenda 21 are as under:(1) Inter generational equity - In Consumer Education Research Society v. Union of India, in this case the court observed that if an attempt is made by the state legislature and the state government to balance the need of environment and the need of economic development it would not be proper to apply the “principle of prohibition” in such a case. It would thus be proper and safer to apply the “principle of protection” and the “polluter Pays Principle” keeping in mind the principle of “sustainable development,” and the principle of intergenerational equity. (2) Precautionary principle - Principle 15 of the Rio summit also provides that, in order to protect the environment, precautionary approach shall be widely applied by the states according to their capabilities. Where there are threats of serious irreversible damage, lack of full scientific certainty shall not be used as a reason for proposing cost effective measure to prevent such degradation. In Research Foundation for Science (18) v. Union of India, the Supreme Court has explained that the precautionary principle generally describes an approach to the protection of the environment or human health based on the precaution even where there is no clear evidence of harm or risk of harm from and activity or substance. It is a part of principle of sustainable development. (3) Polluter Pays Principle - The Polluter pays principle as interpreted by the Supreme Court of India, 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. Principle 16 of the Rio Declaration of 1992 also enunciates, “Polluter Pays Principle”. It provides that the national authorities should endeavour to promote the internationalisation of environmental costs and the use of economic instruments, taking into account the approach that the polluter should in principle bear the costs of pollution with regard to the public interest and without distorting international trade and investment. (4) Public Trust Doctrine - Our legal system is based on the English Common Law and includes Public trust Doctrine as a part of its jurisprudence. The state is the trustee of all natural resources which are by nature meant for the public use and enjoyment. The State as a trustee is under legal duty to protect the natural resources. The public trust doctrine primarily rests on the principle that certain resources like air, sea, water and forests have such a great importance to the people as whole that it would be wholly unjustified to make them subject of private ownership. The said resources being the gift of nature, they should be made freely available to everyone irrespective of the status in life. (5) Eradication of poverty - Principle 5 of the Rio Declaration endeavours to eradicate poverty and to achieve equal standards of living. Millions continue to live below the minimum levels required for the decent human existence, deprived of adequate food, clothing, shelter, education, health and sanitation. The sustainable development has to address the problem of large number of people who live in absolute poverty and who cannot be satisfy their basic needs. At Stockholm Conference in 1972, our Former Prime Minister Mrs. Indira Gandhi said: “of all pollutants we face, the worst is poverty”. The Bruntland report has rightly pointed out that poverty reduces the people’s capacity to use resources in a sustainable manner and hence it intensifies the pressure on the environment.

Important Cases: Entitlement Kendra v State of UP, was the first PIL of its kind where issues related to environment and ecological balance was brought up. Two orders were given by the Court one in 1985 and the other in 1987 in which the Supreme Court highlighted the fact that India citizens have the fundamental of protecting the environment under Article 51A(g) of the Supreme Court.

The Courts interpretation of Article 21 is MC Mehta v Union of India or the Oleum Gas Leak Case. A writ was filed under Article 32 on the event of leakage of Olem gas from one of the units Shriram Foods and Fertilizers Industries. The primary issues dealt with in this case was the scope of Article 21 and 32 of the Constitution. The case was referred to a constitutional Bench which observed that in an application for enforcement of right to like a “hyper-technical” approach cannot be adopted which would defeat the goal of justice. Further the Court also observed that the claim for compensation under Article 21 is sustainable. In respect to Article 32 the Court observed that the ambit of Article 32 is extremely broad and it allows the Courts to forge new remedies and to formulae new strategies to enforce fundamental rights.

Conclusion:

India has a prominent environmental heritage which can be attributable to its biodiversity. However industrial and economic development as well as indiscretions in the part of certain industries as well as the lax attitude of the state in certain circumstances has had an adverse effect on the environment as well as a number of communities who are dependent on them. The Supreme Court has recognized the nexus between environmental protection and human rights in Andhra Pradesh Pollution Control Board v MV Naydu. The Hon’ble court observed that environmental concerns under Article 32 and 226 are of equal significance to Human Rights concerns as both can be traced back to the protection of right to life and liberty under Article 21 of the Constitution. Thus it would not be inaccurate to conclude that the Courts have been instrumental in establishing a holistic framework of environmental law geared towards achieving the ends of justice....