env project final
TRANSCRIPT
-
8/2/2019 Env Project Final
1/27
09BAL062
IMPLEMENTATION OF PRINCIPLES OF
SUSTAINABLE DEVELOPMENT AND ROLE OF
JUDICIARY
PROJECT FOR THE SUBJECT
Environment Law
Submitted By
Ms. Kashmira Bakliwal
09BAL062
Semester VI
B.A.LL.B. (Hons)
UNDER THE GUIDANCE OF
Mrs. Parna Mukherjee
Asst. Prof., ILNU
Submitted To
INSTITUTE OF LAW
NIRMA UNIVERSITY, AHMEDABAD
ACADEMIC YEAR (2011-12)
1
-
8/2/2019 Env Project Final
2/27
09BAL062
CONTENTS
2
Declaration 3
Certificate 4
Acknowledgement 5
Literature Review 6
CHAPTER 1
Introduction : Sustainable Development 8
Research Methodology 9
CHAPTER 2
Origin of Sustainable Development 11
Sustainable Development in India 15
CHAPTER 3
Principles of Sustainable Development 18
Role of Judiciary 20
CHAPTER 4
Conclusion 26
Bibliography 28
-
8/2/2019 Env Project Final
3/27
09BAL062
DECLARATION
The text reported in the project is the outcome of my own efforts and no part of thisreport has been copied in any unauthorized manner and where the text is taken from the
authenticated books, articles or web articles, appropriate reference is given. It is true in my best
of knowledge.
Date:-
Roll No.- 09BAL062 Name & Signature of the student
3
-
8/2/2019 Env Project Final
4/27
09BAL062
CERTIFICATE
This is to certify that the project entitled Implementation of principles of
sustainable development and role of judiciary submitted by Ms. Kashmira Bakliwal for
the project work in the subject of Environment Law embodies independent and original
research work carried out by her under my supervision and guidance.
To the best of my knowledge and belief, it is her original work submitted to fulfill the
project assignment for the Semester End Examination of Sixth semester of B.A.LL.B.
Programme during the academic year 2011-12.
Date: Mrs. Parna Mukherjee
Asst. Professor in Law
Institute of Law,
Nirma University
Ahmedabad
4
-
8/2/2019 Env Project Final
5/27
09BAL062
ACKNOWLEDGMENT
I sincerely thank Institute of Law, Nirma University for providing me this opportunity. I am
grateful to Parna Maam for giving her valuable time to guide and support me throughout the
project without which this would have been a difficult task.
5
-
8/2/2019 Env Project Final
6/27
09BAL062
LITERATURE REVIEW
Books referred-
A Usha, Environmental Law Principles and Governance, The ICFAI University
Press, 1st edition
Sahasranaman, P.B.,Handbook of environmental law, Oxford University Press , New
Delhi, 1st edition
Websites referred-
http://niua.org/Publications/discussion_paper/basudha_paper.pdf
An article on SUSTAINABLE URBAN DEVELOPMENT IN INDIA: SOME ISSUES by
Basudha Chattopadhyay :
Judicial Implementation of the Principles of Ecologically Sustainable Development in
Australia and Asia- A paper presented to the Law Society of New South Wales Regional
Presidents Meeting,Sydney, NSW, 21 July 2006.
http://jurisonline.in/2010/10/international-law-and-sustainable-development/
An article on Sustainable Development - A Conflict Between Environment And Development
by SWATHY GOPAL on SEPTEMBER 24, 2010 :
http://jurisonline.in/2010/10/international-law-and-sustainable-development/
An article on International law and sustainable development by UJJWALA on OCTOBER
29, 2010,
http://www.legalserviceindia.com/articles/jud.htm
http://indialawyers.wordpress.com/2009/05/24/judicial-activism-and-the-role-of-green-
benches-in-india/
http://jurisonline.in/2010/09/sustainable-development-a-conflict-between-environment-and-
development/
http://jurisonline.in/2010/10/international-law-and-sustainable-development/
6
http://niua.org/Publications/discussion_paper/basudha_paper.pdfhttp://jurisonline.in/2010/10/international-law-and-sustainable-development/http://jurisonline.in/2010/10/international-law-and-sustainable-development/http://www.legalserviceindia.com/articles/jud.htmhttp://indialawyers.wordpress.com/2009/05/24/judicial-activism-and-the-role-of-green-benches-in-india/http://indialawyers.wordpress.com/2009/05/24/judicial-activism-and-the-role-of-green-benches-in-india/http://jurisonline.in/2010/09/sustainable-development-a-conflict-between-environment-and-development/http://jurisonline.in/2010/09/sustainable-development-a-conflict-between-environment-and-development/http://jurisonline.in/2010/10/international-law-and-sustainable-development/http://niua.org/Publications/discussion_paper/basudha_paper.pdfhttp://jurisonline.in/2010/10/international-law-and-sustainable-development/http://jurisonline.in/2010/10/international-law-and-sustainable-development/http://www.legalserviceindia.com/articles/jud.htmhttp://indialawyers.wordpress.com/2009/05/24/judicial-activism-and-the-role-of-green-benches-in-india/http://indialawyers.wordpress.com/2009/05/24/judicial-activism-and-the-role-of-green-benches-in-india/http://jurisonline.in/2010/09/sustainable-development-a-conflict-between-environment-and-development/http://jurisonline.in/2010/09/sustainable-development-a-conflict-between-environment-and-development/http://jurisonline.in/2010/10/international-law-and-sustainable-development/ -
8/2/2019 Env Project Final
7/27
09BAL062
http://www.lawlink.nsw.gov.au/lawlink/lec/ll_lec.nsf/vwFiles/Speech_21Jul06_Preston.pdf
/$file/Speech_21Jul06_Preston.pdf
CHAPTER 1
Introduction
Sustainable Development
Research Methodology
Type of research
Objective
Scope
Hypothesis
7
http://www.lawlink.nsw.gov.au/lawlink/lec/ll_lec.nsf/vwFiles/Speech_21Jul06_Preston.pdf/$file/Speech_21Jul06_Preston.pdfhttp://www.lawlink.nsw.gov.au/lawlink/lec/ll_lec.nsf/vwFiles/Speech_21Jul06_Preston.pdf/$file/Speech_21Jul06_Preston.pdfhttp://www.lawlink.nsw.gov.au/lawlink/lec/ll_lec.nsf/vwFiles/Speech_21Jul06_Preston.pdf/$file/Speech_21Jul06_Preston.pdfhttp://www.lawlink.nsw.gov.au/lawlink/lec/ll_lec.nsf/vwFiles/Speech_21Jul06_Preston.pdf/$file/Speech_21Jul06_Preston.pdf -
8/2/2019 Env Project Final
8/27
09BAL062
INTRODUCTION: SUSTAINABLE DEVELOPMENT
Sustainable development refers to at least four separate but related objectives: first, it refers to a
commitment to refer to preserve natural resources for the benefit of present and futuregenerations. Second, sustainable development refers to appropriate standards for the
exploitation of natural resources based upon harvests or use. Third, yet other agreement
requires an equitable use of natural resources, suggesting that the use by any state must take an
account of the needs of other states and people. Fourth category of agreements require that
environmental considerations be integrated into economic and other developmental plans,
programs, and projects, and that environmental needs are taken into account in applying
environmental objectives.
Sustainable development is defined as a pattern of social and structured economic
transformations which optimizes the economic and societal benefits available in the present,
without jeopardizing the likely potential for similar benefits in the future. Sustainable
development is a principle, a strategy for improving the quality of human life while preserving
the environment it is a continually evolving process, in which the journey, that is, the process
of achieving sustainability is of course vitally important, but only as a means of getting to the
destination, that is, the desired future state. The primary objective of sustainable developmentis also to reduce the absolute poverty of the worlds poor through providing lasting and secure
livelihoods that minimize resource depletion, environmental degradation, cultural disruption
and social instability.
So, sustainability is defined as the capacity of being borne or endured, upheld or defended, or
the capacity that something has to be sustained into the future. It is a geometric concept: it
comprises different dimensions of the relationship between humanity and nature, and between
humans of the same generation in different places on Earth, suggesting the ecological,
economical, and social elements of this relationship.
Sustainable development is a pattern of resource use that aims to meet human needs while
preserving the environment so that these needs can be met not only in the present, but also for
the future generations. The term was used by the Brundtland Commission which coined, what
has become the most often-quoted definition of sustainable development as development that
meets the needs of the present without compromising the ability of future generations to meet
their own needs.
8
-
8/2/2019 Env Project Final
9/27
09BAL062
RESEARCH METHODOLOGY
TYPE OF RESEARCH
This is a doctrinal research i.e. a researchconcerned with legal prepositions and doctrines. In caseof doctrinal research the sources of data are legal and appellate court decisions, it is not concerned
with people but documents. The present research study is mainly a doctrinal and analytical. Keeping this
in view, the researcher utilized the conventional method of using libraries consisting of primary sources.
As the study is doctrinal in nature, historical and doctrinal methods are adopted because it is not possible
to study purely by experimental method. The relevant material is collected from the secondary
sources. Materials and information are collected by legal sources like books on Environmental law,
from print and electronic media.
OBJECTIVE
The researcher aims to study the principles of sustainable development. The researcher also
aims to study the role of judiciary in implementation of principles of sustainable development.
SCOPE
The study of this project is limited to sustainable development in India
RESEARCH QUESTIONS
1. What is sustainable development?
2. How is the progress of sustainable development in India?
3. What are the principles of sustainable development?
4. What is the role of judiciary in implementation of principles of sustainable development?
HYPOTHESIS
The judiciary of India has played a very important role in the implementation of sustainable
development
9
-
8/2/2019 Env Project Final
10/27
09BAL062
CHAPTER 2
Genesis of Sustainable
development
Sustainable development in
India
10
-
8/2/2019 Env Project Final
11/27
09BAL062
BRIEF HISTORY OF THE ORIGIN OF SUSTAINABLE DEVELOPMENT
The complex relationship between humankind and the environment has attracted attention for
centuries. In the early 1960s, environmentalism emerged on the national scene, prompted by
the release of scientific evidence on the Planets decline. The concept of 'Sustainable
Development' is not a new concept. A series of international conferences and initiatives
formulated a theoretical framework for sustainable development during 1972 to 1992.The
doctrine had come to be known as early as in 1972 in the Stockholm declaration.
STOCKHOLM CONFERENCE, 1972
The United Nations Conference on the Human Environment or the Stockholm Conference, was
held in Stockholm from June 5 to 16, 1972. The Stockholm Conference was widely regarded as
one of the best organized and most successful United Nations meetings at that time. The
Stockholm meeting produced a conference declaration containing 26 principles and an action
plan including 109 recommendations for future implementation at the national and international
levels. The Action Plan identifies specific environmental actions to address environmental
issues and divides them into three categories: a global environmental assessment
program, environmental management activities, and international measures to support the
national and international actions of assessment and management. The Stockholm Declarationis regarded as an advisory statement of purpose, called as soft law, in contrast to binding or
hard legal obligations contained in bilateral or multilateral treaties. By the end of the
Stockholm Conference, environmental problems were firmly recognized as falling within the
competence of the United Nations system. The environment was now a new and important area
for international cooperation. The international community had accepted the need for prompt
and effective implementation by Governments and the international community of measures
designed to safeguard and enhance the environment for the benefit of present and future
generations of man1.
WORLD COMISSION ON ENVIRONMENT AND DEVELOPMENT, 1983
(BRUNDTLAND COMISSION)
1An article on Sustainable Development - A Conflict between Environment and
Development bySWATHY GOPALonSEPTEMBER 24, 2010:http://jurisonline.in/2010/10/international-law-and-sustainable-development/
11
http://jurisonline.in/2010/10/international-law-and-sustainable-development/http://jurisonline.in/2010/10/international-law-and-sustainable-development/ -
8/2/2019 Env Project Final
12/27
09BAL062
In 1983, a special, independent commission, called the World Commission on Environment
and Development (Brundtland Commission), was established. The objective of Brundtland
commission was to study the issue of environmental degradation and develop an
interdisciplinary, integrated approach to solving our common problem. . The Brundtland report
pointed out two features of environmental law and policy that were inconsistent with the
interdependent nature of the environment and ecosystems. First, it was observed that
environmental law was predominantly structured along the same lines as the territorial
organization of states. Second, it was found that environmental law lacked a unifying
philosophy, and protective measures only addressed specific sectors or species, i.e. components
of the environment, to the extent that international law on sustainable development seeks to
protect the environment irrespective of the linkage between sectors of the environment and the
territorial organization of states. So, this law challenges traditional environmental law. In order
to address this situation, the WCED called on states to reorient their economic development
paths towards environmentally sustainable development.The Brundtland Commission found
that despite the hopeful pronouncements of the Stockholm Conference , no programs or
policies had been instituted that offered any real hope of providing for human needs while
preserving nature.
UNITED NATIONS CONFERENCE ON ENVIRONMENT AND DEVELOPMENT,1992 (RIO DECLARATION)
The United Nations Conference on Environment and Development (UNCED), the so-called
Earth Summit, was held in Rio de Janeiro, Brazil from June 3 to 14, 1992. The Earth Summit
was conceived as a successor to the Stockholm Conference, as there was requirement of a
follow-up meeting after the Stockholm conference. the Rio Conference adopted Agenda 21,
which was a voluminous catalogue of recommendations on the most diverse aspects of
environmental and developmental policies.
The Rio declaration has had a significant influence in the development of sustainable
development due to three factors. First, unlike the earlier Stockholm declaration of 1972,its
language is in most cases obligatory. This declaration was drafted carefully and was intended to
be norm-creating and to lay down the parameters for further development of law. Secondly, the
twenty-seven principles of this declaration represent something of a package deal negotiated by
consensus and must be read as a whole. Thirdly, the declaration reflects a real consensus of
12
-
8/2/2019 Env Project Final
13/27
09BAL062
developed and developing states on the need for generally agreed norms of international
environment protection.
WORLD SUMMIT ON SUSTAINABLE DEVELOPMENT, JOHANNESBURG, 2002
The World Summit on Sustainable Development, or the Earth Summit was held from August
26 to September 4 in Johannesburg, South Africa. The UN General Assembly resolution which
authorized the Johannesburg Conference aimed at carrying on the tradition of precedent-setting
UN environment and development conferences which began with the 1972 UN Conference on
the Human Environment in Stockholm (Stockholm Conference) and the 1992 Rio Conference.
It convened the Johannesburg Summit ten years after the Rio Summit, to reinvigorate the
global commitment to sustainable development and to focus on the identification of areas
where further efforts are needed to implement agenda 21.
At the World Summit on Sustainable Development, held at Johannesburg in 2002, the heads of
the states reaffirmed their commitment to achieving sustainable development and adopted two
documents: the Johannesburg Declaration on Sustainable Development,and the plan of
implementation. The Plan of Implementation, divided in ten sections, focussed on several
critical goals for implementing Agenda 21. The Johannesburg Summit recognized that poverty
eradication, changing consumption and production patterns, sustainable development in aglobalizing world, health and sustainable development, means of implantation, and protecting
and managing the natural resource base for economic and social development are the essential
requirements for sustainable development. The Johannesburg Plan of Implementation called
for partnership between governments in developed and developing countries as well as between
governments and nongovernmental institutions and organizations2.
The Johannesburg Summit reflected a major change now underway in the international
system. After this summit, the international community has begun to recognize that making a
grand promise is easy but it is of little value when not followed by effective performance.
Making real changes on the ground is much more difficult than negotiating treaties,
declarations, and agendas, creating international agencies, and writing national
plans. Governments have not delivered on their promises to work in concert to protect the
global environment and to move toward sustainable development.
2An article on International law and sustainable development
byUJJWALA on OCTOBER 29, 2010,http://jurisonline.in/2010/10/international-law-and-sustainable-development/
13
http://jurisonline.in/2010/10/international-law-and-sustainable-development/http://jurisonline.in/2010/10/international-law-and-sustainable-development/ -
8/2/2019 Env Project Final
14/27
09BAL062
SUSTAINABLE DEVELOPMENT IN INDIA
Indias international obligations under important multilateral treaties and conventions are
complementary to the municipal law. Quite a few international law norms have been
assimilated into domestic law judgments of the apex court. The Forty-Second Amendment Act
of1976 brought about major changes in the Constitution with regard to the environment
protection.It added Article 48A to the directive principles of state policy. It declares: The State
shall endeavour to protect and improve the environment and to safeguard the forests and wild
life of the country. Article 51A (g) in a new chapter entitled Fundamental Duties, imposes a
similar responsibility on every citizen to protect and improve the natural environment
including forests, lakes, rivers and wild life, and to have compassion for living creatures.
Developing nations such as India, usually exist in a precarious state with regards to their
countrys economic development, responsible use and conservation of natural resources. This
struggle is doubled when combined with the quest to eradicate poverty, disease, and illiteracy
and to provide jobs for the nations citizens.
On one hand, India is faced with environmental degradation from poverty and population
pressures, and on the other, from pollution from increased activities due to economic growth
and the consequent changing consumption patterns3.The waste generated from consuming and
producing these goods and services are in turn released back into the environment impacting it.The challenge therefore, in making development compatible with the environment is to
restructure the economic system in a way that it will not destroy the environment as economic
progress continues.
Due to its stark socio-economic disparities and her massive and severely impoverished
population, the United Nations has ranked India in the bottom quarter of the worlds nations in
terms of human development. India cannot afford to neglect the environment if sustainable
development is desired. The pressures on environment have to be curtailed by reducing
pollution pressures, increasing literacy, environmental awareness drives, and poverty
alleviation programmes.
Secondly, the economic activities must be conducted using environment conserving and
resource saving technologies. and creative use of information technologies needs to be
considered seriously. Therefore, though it is not an easy task for India to develop sustainably, it
is absolutely necessary and requires tremendous cooperation and will. With the determination
3
An article on SUSTAINABLE URBAN DEVELOPMENT IN INDIA: SOME ISSUES by BasudhaChattopadhyay :http://niua.org/Publications/discussion_paper/basudha_paper.pdf
14
http://niua.org/Publications/discussion_paper/basudha_paper.pdfhttp://niua.org/Publications/discussion_paper/basudha_paper.pdfhttp://niua.org/Publications/discussion_paper/basudha_paper.pdf -
8/2/2019 Env Project Final
15/27
09BAL062
of the government, private sector, non governmental organizations, and the people, it is
possible for India to achieve sustainable development.
15
-
8/2/2019 Env Project Final
16/27
09BAL062
CHAPTER 3
Principles of
Sustainable
Development
Role of Judiciary
16
-
8/2/2019 Env Project Final
17/27
09BAL062
PRINCIPLES OF SUSTAINABLE DEVELOPMENT
Some of the basic principles of sustainable development are the precautionary principle, the
polluter pays principle
PRECAUTIONARY PRINCIPLE
The Precautionary principle has been recognized as the most important principle of sustainable
development. The Precautionary principle has its origin in a German environmental concept,
Vorsorgeprinzip, or the foresightedness principle, which can be freely translated as the
obligation to foresee and forestall environmental harms.Foresightedness in this context implies
looking over the horizon for unexpected dangers.
The Precautionary Principle has four distinct elements which provide a framework foridentifying, evaluating, learning more about, and avoiding or minimizing the risks of
technology and for providing the time for doing so. These elements of the Precautionary
Principle are: trigger, timing, response and iteration.
Principle 15 the Rio declaration, 1992 states that: 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.
So, under this principle, it is provided that the activities which are likely to pose a threat
or irreversible damage to nature should be avoided and that activities which are likely to pose a
significant risk to nature should not proceed where potential adverse effects are not fully
understood. Thus, the Precautionary principle, which originally was a principle recognized only
by certain states at a national, and later regional, level, henceforth is affirmed worldwide.
POLLUTER PAYS PRINCIPLE
The polluter-pays principle is necessary to ensure that social, economic and environmentalgoals are realized harmoniously; it is essential to integrated decision-making. According to the
polluter-pays principle, governments should require polluting entities to bear the costs of their
pollution rather than impose those costs on others or on the environment. In short, economic
development should not come at the expense of social development, natural resources
protection or even other types of economic development.
The Organization for Economic Cooperation and Development (OECD), which is composed of
the worlds developed nations, originally enunciated the principle in 1972 as a means of
allocating costs for pollution control. In practice, however, it is difficult to properly allocate
17
-
8/2/2019 Env Project Final
18/27
09BAL062
costs without also asserting liability against particular entities for those costs. The principle is
thus broadly understood to include both cost- and liability-allocation. Because the use of goods
and services often results in environmental or social costs, the principle also is referred to as the
user-pays principle4. The object of this principle is to make the polluter liable not only for the
compensation to the victims but also for cost of restoring of environmental degradation.
Inter-Generational Equity:
The principle talks about the right of every generation to get benefit from the natural resources.
Principle 3 of the Rio declaration states that: "The right to development must be fulfilled so as
to equitably meet developmental and environmental needs of present and future generations."
The main object behind the principle is to ensure that the present generation should not abuse
the non-renewable resources so as to deprive the future generation of its benefit.
ROLE OF JUDICIARY IN SUSTAINABLE DEVELOPMENT
The shortcomings of the executive in coping with the pressures on the environment brought
about by change in the countrys economic policies had thrust the responsibility of
environmental protection upon the judiciary. This has meant that in India, the Judiciary in some
4 Judicial Implementation of the Principles of Ecologically Sustainable Development in
Australia and Asia- A paper presented to the Law Society of New South Wales RegionalPresidents Meeting,Sydney, NSW, 21 July 2006.
18
-
8/2/2019 Env Project Final
19/27
09BAL062
instances had had to not only exercise its role as an interpreter of the aw but has also had to
take upon itself the role of constant monitoring and implementation necessitated through a
series of public interest litigations that have been initiated in various courts. However, in the
defence of the executive, it must be said that India has actively participated in several
multilateral treaties and has been active in admitting its commitments to the environment in
accordance with the general principles of International Law while incorporating them into its
national laws. Much of the difficulty of the executive in implementing these laws can perhaps
be attributed to resource constraints as well.
In its efforts to protect the environment, the Supreme Court and the Indian Judiciary in general
have relied on the public trust doctrine, precautionary principle, polluter pays principle the
doctrine of strict and absolute liability, the exemplary damages principle, the pollution fine
principle and inter-generational equity principle apart from the existing law of the land.
Another guiding principle has been that of adopting a model of sustainable development. The
consistent position adopted by the courts as enunciated in one of its judgments has been that
there can neither be development at the cost of the environment or environment at the cost of
development5.
Thus, the Supreme Court recognizes the need for development and proper utilization of our
natural resources for the betterment of our society. However, this cannot be done at the expense
of the environment itself.
The courts in India have, thus, played a dynamic role in preserving the environment and eco-
system. In a series of cases, the superior courts of India issued various directions and orders to
prevent the environmental degradation.
Judiciary in India, more precisely, the Supreme Court and the High Courts has played an
important role in preserving the doctrine of sustainable development. Parliament has enacted
various laws to deal with the problems of environmental degradation. In such a situation, the
superior courts have played a pivotal role in interpreting those laws to suit the doctrine ofsustainable development. It is also to be remembered that most of the environmental cases have
come before the court through PIL (public interest litigation) either under Article 32 or under
226 of the constitution.
5 An article on Sustainable Development and Indian Judiciary By Soura SubhaGhosh, http://www.legalserviceindia.com/articles/jud.htm
19
http://www.legalserviceindia.com/articles/jud.htmhttp://www.legalserviceindia.com/articles/jud.htm -
8/2/2019 Env Project Final
20/27
09BAL062
The first case in which the Supreme Court had applied the doctrine of Sustainable
Development was Vellore Citizens Welfare Forum v. Union of India6. In that case, a dispute
arose over some tanneries in the State of Tamil Nadu. These tanneries were discharging
effluents in the river Palar, which was the main source of drinking water in the State. The
Honble Supreme Court held that: We have no hesitation in holding that the precautionary
principle and polluter pays principle are part of the environmental law of India.
Before Vellore Citizens Welfare Forum v. Union of India, the Supreme Court has in many
cases tried to keep the balance between ecology and development. In Rural Litigation and
Entitlement Kendra Dehradun v. State of Uttar Pradesh7, which was also known as Doon
Valley case, a dispute arose over mining in the hilly areas. The Supreme Court after much
investigation ordered the stopping of mining work and held: This would undoubtedly cause
hardship to them, but it is a price that has to be paid for protecting and safeguarding the right of
the people to live in healthy environment with minimal disturbance of ecological balance and
without avoidable hazard to them and to their cattle, homes and agricultural land and undue
affection of air, water and environment.
However in 1991, 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 lakhs to the fund of the monitoring committee. This has
been directed on the principle of polluter pays.
Likewise, various forests have also been protected. In a landmark case Tarun Bhagat Singh v.
Union of India8, the petitioner through a public interest litigation 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. But it would be unwise to hold that the Courts
6 AIR 1996 SC 2715
7 1989 AIR 594
8 AIR 1992 SC 514
20
-
8/2/2019 Env Project Final
21/27
09BAL062
always favour environment without giving any significance to the development aspect when
dispute arises between environment and development.
InM.C. Mehta v. Union of India9 the Supreme Court issued directions towards the closing of
mechanical stone crushing activities in and around Delhi, which was declared by World Health
Organisation 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.
In Indian Council for Enviro-Legal Action v Union of India10, a number of private companies
operated chemical factories without the required licences and had not installed equipment for
the treatment of highly toxic effluent which they discharged. The effluent polluted water
aquifers and the soil in the area and endangered the villagers right to life. The Supreme Court
of India dealt with the liability of the companies to defray the costs of the remedial measures.
One of the ways that the liability of the companies could be viewed was from the polluter
pays principle: 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. According to this principle, the responsibility for repairing
the damage is that of the offending industry.
In Vellore Citizens Welfare Forum v Union of India, the Supreme Court of India, referred tothe Supreme Courts decision inIndian Council for Enviro-Legal Action v Union of India and
held that the polluter pays principle had been accepted as part of the environmental law of the
country.
InM.C Mehta v Union of India the Supreme Court of India was concerned with approximately
550 tanneries located in thickly populated residential areas. They were being operated in
9 (1997) 1 SCC 388
10 AIR 1996 SC 144
21
-
8/2/2019 Env Project Final
22/27
09BAL062
extremely unhygienic conditions and discharged highly toxic effluents over the areas. The
Supreme Court , referred to the Supreme Courts decisions in Indian Council for Enviro-Legal
Action v Union of Indiaand Vellore Citizens Welfare Forum v Union of India and held that
(i)t is thus settled by this Court that one who pollutes the environment must pay the to reverse
the damage caused by his acts.
The Court ordered the Calcutta tanneries to relocate and to pay compensation for the loss of
ecology/environment of the affected areas and the suffering of the residents.
Similarly, in M.C Mehta v Union of India,the Supreme Court of India, ordered coke/coal
consuming industries emitting air pollution that was damaging the Taj Mahal in Agra and the
residents of the Taj Trapezium, to apply for gas connection or, on failing to do so, to relocate.The Court cited with approval the decisions in Indian Council for Enviro-Legal Action v Union
of India and Vellore Citizens Welfare Forum v Union of India.
In Research Foundation for Science Technology and Natural Resources Policy v Union of
India11, the Supreme Court of India was concerned with 133 containers of illegally imported oil
which constituted hazardous waste which were lying at Nhava Sheva Port. The importers were
given notice by order of the Supreme Court to show cause why the consignment should not be
ordered to be re-exported or destroyed at their cost. Further, the importers were required to
show cause why the costs incurred by the relevant government body on testing the oil to
determine its status as hazardous waste should not be recovered from them and why they
should not be directed to pay compensation on the basis of the polluter pays principle.
The Supreme Court held: The liability of the importers to pay the amounts to be spent for
destroying the goods in question cannot be doubted on applicability of precautionary principle
and polluter pays principle. These principles are part of the environmental law of India. Thereis constitutional mandate to protect and improve the environment. In order to fulfil the
constitutional mandate various legislations have been enacted with attempt to solve the
problem of environmental degradation
The polluter pays principle basically means that the producer of goods of other items should be
responsible for the cost of preventing or dealing with any pollution that the process causes.
This includes environmental cost as well as direct cost to the people or property, it also covers
11 2007 (10) SCALE 59
22
-
8/2/2019 Env Project Final
23/27
09BAL062
cost incurred in avoiding pollution and not just those related to remedying any damage. It will
include full environmental cost and not just those which are immediately tangible. The
principle also does not mean that the polluter can pollute and pay for it. The nature and extent
of cost and the circumstances in which the principle will apply may differ from case to case
The polluter pays principle was applied inIndian Council for Enviro-Legal Action and others.
vs. Union of India and others to fasten liability for defraying the costs of remedial measures.
The task of determining the amount required for carrying out the remedial measures, its
recovery / realization and the task of undertaking the remedial measures was placed in this case
upon the Central Government. In the present case the approximate expenditure to be incurred
for destroying the hazardous waste has been mentioned in report.
CHAPTER 4
23
-
8/2/2019 Env Project Final
24/27
09BAL062
Conclusion
Bibliography
Conclusion
The doctrine of sustainable development although is not an empty slogan, it is required to be
implemented taking a pragmatic view. Making the concept of sustainable development
operational for public policies raises important challenges that involve complex synergies and
trade offs. 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
24
-
8/2/2019 Env Project Final
25/27
09BAL062
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. It has been observed by Professor Michael von Hauff that, It is remarkable that India
was the first country in the world to enshrine environmental protection as a state goal in its
Constitution.
Sustainable development requires the States to ensure that they develop and use their natural
resources in a manner which is sustainable. The goal of the Government should be to come out
with laws and ideas with a commitment to preserve natural resources for the benefit of today
and tomorrow. The Government should also bring out some appropriate principles for the
utilization of natural resources based upon harvests or use which is prudent, or rational, yet
other agreements require an equitable use of natural resources, suggesting that the use by anyState must take account of the needs of other States and people and lastly it is also required
that, environmental considerations should be integrated into economic and other development
plans, programmes, and projects, and that the development needs are taken into account in
applying environmental objectives. Then we will be able to achieve sustainable development.
There has to be development in all countries, as development helps make mans life better and
easier to live on everyday basis. Without development, a country in the present global forum,
will be left behind and would appear primitive to its other counterpart nations or states. Thehuman race is the smartest species on the planet and without thoughts of development the zeal
to excel in all fields will come to a staggering halt. The result of which will lead to the down
fall of a State, Nation or even the entire human race. The human race which has managed to
stay on top of the food chain for millions of years is because of the fact that humans have the
ability of reasoning, which leads to the coming of many great inventions and hence,
development. Hence in the process of development there should be no hardship or poverty
caused to the people but on the other hand it should make life of the individuals better than
what it is presently. Therefore, in India the Legislature has laid down rules and laws for theprocedures to be followed in such cases.
But what has to be noted is that man, whether civilised or savage, is a child of nature and not
the master of nature. His action must abide to certain natural laws if he is to maintain his
dominance over his environment. When he tries to circumvent the laws of nature, he usually
destroys the natural environment that sustains him. The environment deteriorates rapidly and so
does his civilization. On account of the deterioration of the environment, ecology is disturbed;
climate has undergone a major change and rains have become scanty.These have long term
adverse effects on national economy and also on the living process.
25
-
8/2/2019 Env Project Final
26/27
09BAL062
There is a need to protect the environment system. But at the same time there has to be a
balance between this protection and development. While it is true that in a developing country
there shall have to be developments, but that development shall have to be in closest possible
harmony with the environment. As otherwise there would be development but no environment,
which would result in total devastation, though, however may not be felt in presenti but at
some future point of time, and then it would be too late in the day, to control and improve the
environment. There should be a proper balance between the protection of environment and the
development process. The society shall have to prosper, but not at the cost of the
environment. The activities which are unscientific and unsustainable and are destructive of the
ecological balance are not to be allowed.
A landmark judgement of the Supreme Court on public interest litigation brought the sharpconflict between development and conservation of environment into legal focus. The Court
held, After all, the present generation has no right to deplete all the existing forests and leave
nothing for the next and future generations. The primary duty of the State is towards the
community and the obligation to society must predominate over obligations to individuals.
The Supreme Court has pointed out that the sustainable development consists in preservation of
the person without compromising the ability of future generation to meet its needs. The
sustainable development is a balancing concept between ecological development and
industrialization. Therefore, with a view to improve the quality of human life while livingwithin the carrying capacity of the subordinate ecological system, sustainable
development should be maintained by the industry and the State should ensure environmental
protection and prevent degradation thereof.
Bibliography
Books referred-
26
-
8/2/2019 Env Project Final
27/27
09BAL062
A Usha, Environmental Law Principles and Governance, The ICFAI University
Press, 1st edition
Sahasranaman, P.B.,Handbook of environmental law, Oxford University Press , New
Delhi, 1st edition
Websites referred-
http://niua.org/Publications/discussion_paper/basudha_paper.pdf
http://jurisonline.in/2010/10/international-law-and-sustainable-development/
http://jurisonline.in/2010/10/international-law-and-sustainable-development/
http://www.legalserviceindia.com/articles/jud.htm
http://indialawyers.wordpress.com/2009/05/24/judicial-activism-and-the-role-of-green-
benches-in-india/
http://jurisonline.in/2010/09/sustainable-development-a-conflict-between-environment-and-
development/
http://jurisonline.in/2010/10/international-law-and-sustainable-development/
http://www.lawlink.nsw.gov.au/lawlink/lec/ll_lec.nsf/vwFiles/Speech_21Jul06_Preston.pdf/
$file/Speech_21Jul06_Preston.pdf
http://niua.org/Publications/discussion_paper/basudha_paper.pdfhttp://jurisonline.in/2010/10/international-law-and-sustainable-development/http://jurisonline.in/2010/10/international-law-and-sustainable-development/http://www.legalserviceindia.com/articles/jud.htmhttp://indialawyers.wordpress.com/2009/05/24/judicial-activism-and-the-role-of-green-benches-in-india/http://indialawyers.wordpress.com/2009/05/24/judicial-activism-and-the-role-of-green-benches-in-india/http://jurisonline.in/2010/09/sustainable-development-a-conflict-between-environment-and-development/http://jurisonline.in/2010/09/sustainable-development-a-conflict-between-environment-and-development/http://jurisonline.in/2010/10/international-law-and-sustainable-development/http://www.lawlink.nsw.gov.au/lawlink/lec/ll_lec.nsf/vwFiles/Speech_21Jul06_Preston.pdf/$file/Speech_21Jul06_Preston.pdfhttp://www.lawlink.nsw.gov.au/lawlink/lec/ll_lec.nsf/vwFiles/Speech_21Jul06_Preston.pdf/$file/Speech_21Jul06_Preston.pdfhttp://niua.org/Publications/discussion_paper/basudha_paper.pdfhttp://jurisonline.in/2010/10/international-law-and-sustainable-development/http://jurisonline.in/2010/10/international-law-and-sustainable-development/http://www.legalserviceindia.com/articles/jud.htmhttp://indialawyers.wordpress.com/2009/05/24/judicial-activism-and-the-role-of-green-benches-in-india/http://indialawyers.wordpress.com/2009/05/24/judicial-activism-and-the-role-of-green-benches-in-india/http://jurisonline.in/2010/09/sustainable-development-a-conflict-between-environment-and-development/http://jurisonline.in/2010/09/sustainable-development-a-conflict-between-environment-and-development/http://jurisonline.in/2010/10/international-law-and-sustainable-development/http://www.lawlink.nsw.gov.au/lawlink/lec/ll_lec.nsf/vwFiles/Speech_21Jul06_Preston.pdf/$file/Speech_21Jul06_Preston.pdfhttp://www.lawlink.nsw.gov.au/lawlink/lec/ll_lec.nsf/vwFiles/Speech_21Jul06_Preston.pdf/$file/Speech_21Jul06_Preston.pdf