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Meaning: Right to
wholesome environment is a fundamental right protected under
Article 21 of the Constitution of India. But the question is, can
the environment be protected at present times when almost all the
countries in South-East Asia are still at their developing stages?
Development comes through industrialization, which in turn the
main factor behind the degradation of environment. To resolve the
issue, the experts worldwide have come up with a doctrine called
'Sustainable Development', i.e. there must be balance between
between development and ecology.
Origin of the doctrine:
The concept of 'Sustainable Development' is not a new concept. The
doctrine had come to be known as early as in 1972 in the Stockholm
declaration. It had been stated in the declaration that:
" Man has the fundamental right to freedom, equality and adequate
conditions of life, in an environment of a quality that permits a
life of dignity and well being and he bears a solemn
responsibility to protect and improve the environment for present
and future generation "
But the concept was given a definite shape in a report by world
commission on environment, which was known as ' our common
future'. The commission, which was chaired by the then Norway
Prime Minister, Ms. G.H. Brundtland defined 'Sustainable
Development' as:
" Development that meets the needs of the present without
compromising the ability of the future generations to meet their
own needs".
The report was popularly known as 'Brundtland report' the concept
had been further discussed under agenda 21 of UN conference on
environment and development held in June 1992 at Rio de Janeiro,
Brazil.
Various principles of 'Sustainable
Development': Some of the basic principles of
'Sustainable Development' as described in 'Brundtland report' are
as follows: -
a) 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.
b) The Precautionary Principle: This principle has widely
been recognized as the most important principle of 'Sustainable
Development'. Principle 15 the Rio declaration 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."
In other words it means:
1) Environmental measures by the state government and the local
authority must anticipate, prevent and attack the causes of
environmental degradation.
2) Where there are threats of serious and irreversible damage,
lack of scientific certainty should not used as a reason for
postponing measures to prevent environmental degradation.
3) The 'onus of proof' is on the actor or the developer to proof
that his action is environmentally benign.
c) Polluter Pays Principle:
Principle 16 of the Rio declaration states that :
"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."
It is quite obvious that the object of the above principle was to
make the polluter liable not only for the compensation to the
victims but also for the cost of restoring of environmental
degradation. Once the actor is proved to be guilty, he is liable
to compensate for his act irrelevant of the fact that whether he's
involved in development process or not.
Role of judiciary:
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 of ' Sustainable
Development'.
It is worthwhile to mention here that principle 10 of Rio
declaration, 1992 states that:
"Environmental issues are best handled with participation of all
concerned citizens, at the relevant level. At the national level,
each individual shall have appropriate access to information
concerning the environment that is held by public authorities,
including information on hazardous materials and activities
In their communities, and the opportunity to participate in
decision-making processes. States shall facilitate and encourage
public awareness and participation by making information widely
available. Effective access to judicial and administrative
proceedings, including redress and remedy, shall be provided."
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 226of the
constitution.
The first case on which the apex court had applied the doctrine of
' Sustainable Development' was Vellore Citizen Welfare Forum vs.
Union of India. In the instant case, 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 Hon'ble 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"
The court also held that:
" Remediation of the damaged environment is part of the process of
'Sustainable Development' and as such polluter is liable to pay
the cost to the individual sufferers as well as the cost of
reversing the damaged ecology."
But before Vellore Citizen's case, the Supreme Court has in many
cases tried to keep the balance between ecology and development.
In Rural Litigation and Entitlement Kendra Dehradun vs. State of
Uttar Pradesh, which was also known as Doon valley case, dispute
arose over mining in the hilly areas. The Supreme Court after much
investigation, ordered the stopping of mining work and held that:
" 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, in the Rural Litigation and Entitlement Kendra
vs. State of U.P. 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. This has been directed on the principle of 'polluter
pays'.
Likewise, various forests have also been protected. In a landmark
case Tarun Bhagat Singh vs. Union of India, the petitioner through
a PIL brought to the notice of the supreme court that the state
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 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 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.
Conclusion:
environment and development are two sides of the same coin. Any
one of these cannot be sacrificed for the other. On contrary, both
are equally important for our better future. Thus the
responsibility lies on the Supreme Court and the various High
Courts to deal with these cases with caution of high degree. Then
only, we will achieve our goal i.e. to secure a pollution free
developed country for our next generation.
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References:
1) Paras Diwan - Environment Administration Law and judicial
attitude.
2) Environmental Law by H.N.Tiwari.
3) Law relating to Environmental pollution and protection by Dr.
N.Maheshwara Swamy
4) Environmental Law by Dr.Paramjit Jaswal and Dr. Nistha Jaswal.
5) Environmental Law and Policy in India by Shyam Divan and Armin
Rosencranz
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Authored by Soura Subha Ghosh and can be reached at
: soura_83@rediffmail.com
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