CONCEPT OF SUSTAINABLE DEVELOPMENT

- AN INDIAN EXPERIENCE
6. 1.

Introduction

Industrialisation and urbanization on the one hand and population explosion and
poverty on the other has been witnessed formidable scale of the environmental problems.
An increasing quantum of pollution inter alia results in declining environment both
quantitatively and qualitatively that has severely been threatening the life support system
of present and future generations. To resurrect environmental problems as a international
commitment; a number of legislative and policy measures were adopted at all level. The
multiplicity of environmental measures is further compounded to create various authorities
to make effective implementation of all such measures.

Although these regulatory

agencies remarkably involved in planning and implementation of the measure; the various
reports highlights the inadequacy in handling development and environmental issues. This
has significantly raised a doubt that legal elements of the concept of Sustainable
Development are a part of environmental governance in India. To verify the commitment;
the present chapter an attempt is made to analyse the constitutional and legislative
standards to conserve resources in achieving environmental sustainability both for present
and future generations. This chapter also explores the contribution of judiciary on the
trade/development and environmental controversies in understanding the status of the
concept of Sustainable Development in India.

6. 2. Environmental Protection - Laws and Policies in India

In India, depletion of resources and environmental crisis is not only because of

poverty and population explosion but also industrial development. Since the establishment
of East India Company, to respond to the tremendous challenges to the environment here
are number of comprehensive legislative framework and institutional mechanisms were
established in diversified subjects like forests and wildlife. However, no provision of the
environmental legislation authorize the affected person in view of environmental pollution
is entitled to claim remedy in any manner.

6. 2. 1. Environmental Protection in Pre Constitution of India

In a leissez faire, recognising social order, a highest priority; measures are adopted
to into economic and other development plans, in achieving environmental objectives.
Easement Act also protected riparian owners against unreasonable pollution by upstream
officer.1

The second half of the 19th century marked the beginning of an organized forest

management in India with some steps were taken to conserve forest and Birds.2 To respond
to the industrial revolution and to regulate the industrial activities the Factories Act was
enacted as a part of occupational safety.3 The Tamil Nadu Public Health Act, categorically

Easement Act, 1882, V of 1882.

The Indian Forest Act, 1927, Act No. 16 of 1927 and World Birds and Animal Protection Act, 1912, Act
No. IV of 1912.
3
Factories Act, 1948, Act No. 63 of 1948.
2

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emphasise the mandate of the local bodies to make to make appropriate measure to protect
public health.4

Any deterioration to the environment is considered an act or omission against the

state and state machinery can initiate criminal actions against the wrong doer.5

Most of

these environmental legislations at the stage of infancy and these do not make mandatory
to conduct environmental impact study before setting up of an industrial establishment.
Interestingly, the common law principle, tort helped the people to initiate civil proceedings
for want of damages under the basis of ubi jus ibi remedium. Later this remedy is
considered as a part of environmental jurisprudence in India.

6. 2. 2. Environmental Protection in Post Constitution of India

The constitutional aspects of environmental protection in India can be classified

into two categories. Such as,
1. Pre Fourty Second Constitutional (Amendment) Act, 1976; and
2. Post Fourty Second Constitutional (Amendment) Act, 1976.

6. 2. 2. 1. Pre Fourty Second Constitutional (Amendment) Act, 1976.

Initially, the Constitution of India did not contain a specific provision for the
protection and preservation of the environment. However, the division of and distribution

4
5

Tamil Nadu Public Health Act, 1939 Act No. 3 of 1939.

Indian Penal Code, Act No. 45 of 1860; and Criminal Procedure Code, 1973, Act No. 2 of 1974.

220

of the legislative competence played a significant role to deal with environmental related
issues; such as, industries, mining and minerals, oil and oil industries, water, fishing,
agriculture, public health and sanitation.

Article 2466 of the Constitution of India

empowers the legislatures to enact laws on certain subjects.7

There are some

Constitutional Articles and Entries, such as Article 248,8 249-252,9 and Entry 97 of List
I10; exclusively confer Parliament to legislate on certain circumstances. Article 253 of the
Constitution of India empowers the Parliament to make any law for the whole or any part
of the territory in India for implementing treaty, agreement or convention with any other
country or countries.11

6. 2. 2. 2. Post Fourty Second Constitutional (Amendment) Act, 1976

India was an active participant in the Stockholm Declaration (UNCHE) and

signatory to almost all MEAs. In fact, these MEAs are soft law in nature that envisioned a
broad legislative and institutional framework for the protection of the environment. The
former Prime Minister of India, late Mrs. Indira Gandhi, who had actively participated and
stressed the importance and need for environmental protection.12 She also acclaimed

Article 246, Subject matter of laws made by Parliament and Legislatures of States.
See Entries 51, 52, 53, 54, 56 and 57 of List I; See Entries 6, 14,15,16,17,18,21 and 23 of List II and See
Entries, 17, 17-A, 17-B, 20 and 20-A of List III of VIIth Schedule of the Constitution of India, 1950.
8
Article 248, Residuary Powers, Constitution of India, 1950.
9
Article 249-252, Power of Parliament to legislate with respect to a matter in the State List in the national
interest.
10
See Entry 97, Any other matter not numerated in List II or List III.
11
Article 253 Legislation for giving effect to international agreements: Notwithstanding anything in the
foregoing provisions of this Chapter, Parliament has power to make any law for the whole or any part of
the territory of India for implementing any treaty, agreement or convention with any other country or
countries or any decision made at international conference, association or other body.
12
Protect Environment to Secure Future, Prime Ministers Address to Legislators, Times of India, 1 May,
1982.
7

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without proper management of resources developing countries like India will not have any
representation at the global market.

Prior to Fourty Second Amendment, there was no specific laws environmental

protection, management and conservation. However, recogninsing the significance and
commitment of the UNCHE; in 1976, the 42nd Amendment to the Constitution introduced
new Article 48- A13 to the Constitution under Part IV14 and Part IV A. Article 48 - A
declares a duty of the state to protect and improve the environment. Similarly, Article 51
(A) (g)15 also cast similar duty of every citizen to protect and improve the natural
environment. Subsequently, in late 1980s, to make a collective and coordinated approach
the Parliament enacted environmental Protection Act.16 Insertion of Article 48-A and 51A (g) describe that does not confer upon citizen claim a right to clean environment.17 The
basis of the harmonious construction describes that environmental statutes are regarded as
beneficial legislation; it is the duty of the court to adopt interpretation favouring ecological
preservation.18

13

48 - A, Protection and improvement of the Environment and Safeguarding of Forest and Wildlife- The
State shall endeavour to protect and improve the environment and to safeguard the forest and wildlife of
the country.
14
Part IV of the Constitution is Directive Principle of State Policy. These policies are not directly enforced
by the Courts unless there in need and desire to achieve economic, social and environmental goals. The
present status of this Part has transformed as a part of Fundamental Right by the various decision by the
Supreme Court of India.
15
51 (A) (g) - It shall be the duty of every citizen of India to protect and improve the natural environment
including forests, lakes, river and wild life and to have compassion for living creatures.
16
Act No. 29 of 1986.
17
V. S. Mani, Environmental Law in South Asia- An Overview 30 Ban. L. J. (2001), pp 15-38 at 25;
Ashok A. Desai, Constitutional Accountability Towards Environment, 42 JILI (2000), pp 160-170 at
167.
18
Shyam Divan and Armin Rosencranz, Environmental Law and Policy in India, (Second Edition, Oxford,
New Delhi, 2008), p. 59.

222

6. 3. Compliance and Contribution to the GATT-WTO

Form the inception of the GATT-WTO, protectionist policies shaped Indias

attitude to participate in the multilateral trading system. In the early 1990s realising the
commitment of GATT-WTO and the Rio Declaration as a protectionist policy;19 the
government has launched the New Economic Policy of India. This Liberalization policy is
not only influencing the market access and export competitiveness approach but also
necessitated to reduce investment barriers and encouraged export-oriented enterprises as a
tragic effort is helping to spur economic development of state with global trade. There are
contradictory views on the liberalization policy in India.

On the one hand, some

economists argued that the multilateral trading system and the consequential of
liberalisation policies of India without inflicting any serious harm to the environmental or
tilting ecological balance.20 On the other, the environmentalists argued that liberalization
policy may exacerbate environmental problems and increase inequities21 and entail a loss
and erosion of sovereignty. However, the perseverance of sovereignty can be partially and
strategically ceded to further domestic policy reform and to secure an open trading

19

Rio Declaration, 14 June 1992, UN Doc. A/Conf. 151/26, reprinted in 31 ILM 874 (1992).
Elaine Johnson, Interface Between Trade, Investment and Sustainable Development: Implications for
India, 2 Macquarie J. Intl & Comp. Envtl. L. (2005), pp 37-65 at 55; S. Sivakumar, Environmental
Protection: International and National Perspectives CULR (2004), pp 279-304 at 292.
21
Jagdish Bhagwati, In Defense of Globalisation, (Second Impression, Oxford University Press, Oxford
2008), p.135; R. Sudharsn, Liberalisation and the Environment The Hindu, New Delhi, 19th April
(1996); Shawkat Alam, Trade-Environment Nexus in GATT Jurisprudence: Passing Issue for Developing
Countries, 17 Bond Law Review (2005), pp 1- 26 at 4.
20

223

system.22 The existing laws on environmental conservation are reluctance to engage

thoughtful discussions on changes in trade rules for citizens environmental purposes.23

Millennium Development Goals (MDGs)24 reiterated that need for environmental

security. Interestingly, national government can adopt any environmental measures against
trade without restricting international trade unless that is necessary or unavoidable.25
Although, most the above mentioned measures26 are often restored as non-tariff barriers
against trade27 and these measures may impede trade with agriculture and food products.28
Most of the trade and environmental measures are adopted by the WTO Member states in
TBT,29 SPS30 and SCM31

with respect to development or application of standards.

Professor Chimni descries that developing countries should actively take in the WTO

22

Aaditya Mattoo and Arvind Subramanyam, India and the Multilateral Trading System PostDoha:Defense or Proactive? in Aaditya Mattoo and Robert M. Stern (Eds.,) India and the WTO, (World
Bank and Oxford, 2003) pp 327-366 at 329.
23
David Ambrose, Implications of Environmental Concerns on International Trade and India in Dr. N.
Balu (Edn.,), India and WTO (1995), pp 21-32; R. P. Anand, Development and Environment: The case of
the Developing Countries 20 IJIL (1980), pp 1-19 at 19; Nordstrom, Hakan and Scott Vaughan (Eds.,)
Trade and Environment, WTO Special Studies, (1999) p. 37; Simon Dalby, Environmental Insecurities:
Geopolitics, Resource and Conflict, XXXVIII Econ. & Pol. Wkly (2003), pp 5073-5079; Dr. N.
Maheswara Swamy, N. Ranjit and N. Chaihnya, Sustainable Development: The Object Behind - An
Analysis, Andhra Law Times (J) (2003), pp 23-30; Dr. A. David Ambrose, a speech delivered to
inaugurate the Two-Day national Seminar on New Developments in International Law, an unpublished
work.
24
Millennium Development Goals, available at http:// www:unmillenniumproject.org/goals/index.htm last
visited on 23.07.2012.
25
See gen. Mohammed Saqib, Technical Barriers to Trade and the Role of Indian Standards-Setting
Institutions in Aaditya and Robert M. Stern (Eds.,) India and the WTO, (World Bank and Oxford, 2003)
pp 269-298 at 272.
26
Jagdish Bhawgwati and T. N. Sriniviasan, Trade and the Environment: Does Environmental Diversity
Detract from the Case for Free Trade in Jagdish Bhawgwati and Robert Hudec, (Eds.,) Fair Trade and
Harmonisation Prerequisite for Free Trade?, (The MIT Press, Cambridge, 1996), pp 159-254 at p.
164.
27
Pearlson and Charles, Multinational Corporations, Environment and the Third World, (Duke
University Press, London, 2000), p. 41.
28
Veena Jha, Strengthening Developing Countries Capacities to Respond, Health, Sanitary and
Environmental Requirements, A Scoping Paper for South Asia, UNCTAD, New Delhi (2001), p. 37.
29
Agreement on Technical Barriers to Trade, 33 ILM 81 (1994).
30
Agreement on the Application of Sanitary and Phytosanitaty Measures, 33 ILM 1140 (1994).
31
Agreement on Subsidies and Countervailing Measures, 33 ILM 1125 (1994).

224

process whereby it is expected to strictly fulfil its obligations when more powerful states
can avoid doing so through the incorporation of novel interpretative schemes or by using
the national security clause.32 However, the recent Environmental Protection Approach
(EPA) describes that no measure will conflict with MFN principles of GATT.33

The Ministry of Environment and Forest has framed certain policies towards
achieving Sustainable Development. The policy includes Development of Management
Tools for preventing environmental pollution, Indian Centre for Promotion of Cleaner
Technologies (ICPC), National Environmental Action Plan for Control of Pollution,
Environment Management System (EMS), Programme for Mitigating Pollution and
National Bio Diversity Strategy and Action Plan (NBSAP). India has also reassured its
commitment towards UN Convention to Combat Desertification34 and also ratified
Convention on Biological Diversity35 and Kyoto Protocol on Convention on Climate
Change.36 The delegates from India have actively participated in the 22nd Special Session
of the General Assembly and also at the Global Conference on Sustainable Development
of Small Island Developing States in Barbados. New Delhi Declaration on Sustainable
Development.37

32

B. S. Chimni, India and Ongoing Review of WTO Dispute Settlement System 45 Econ. & Pol. Wkly
(1999), pp 246-267.
33
Para 6, Environmental Project Approach - A compatibility and Criteria, Submitted to the Committee on
Trade and Environment Special Session, TN/TE/W/67, 13 June 2006.
34
UN. Doc. A/AC. 241/15/Rev. 3; 33 ILM 1332 (1994).
35
UN Doc. UNEP Bio. Div/N7-INC. 5/4; 31 ILM 822 (1992).
36
Kyoto Protcol to the United Nations Framework Convention on Climate Change, UN Doc.
FCC/CP/1997/L.7/Add. 1, 37 ILM 22 (1997).
37
New Delhi Principles of International Law Relating to Sustainable Development, 2 April 2002, 2 Intl
Envtl Agreements: Pol. L & Econ. (2002), pp 211-216; ILA Report of the Seventeenth Conference, New
Delhi (London, 2002). Available at http://www.ila-hq-org, last visited on 24 May 2012.

225

Appreciating the effective trade and environmental measures; Abdul Haseeb Ansari
appreciated that economic integration also helped to transform environmental protection
from a clearly domestic, highly localized issue into one of inherently international scope.38
Jagdish Bhagwati remarkably described that the GATT system authorize the autonomy of
national governments putting their economic policies within their jurisdiction.39 Anand
comments that focus on economic development and. Economic development was insisted
upon for the disapproval of pollution of poverty40. The formidable body of law ensures
that industrial development, does not sacrifice environmental interests and polluting
industries are made to pay in accordance with the polluter pays principle.41

Recognising the Indias mandate in balancing the interests of individual and states
as a need of the hour various contributions made in the WTO Ministerial Declaration.42 In
2001 Doha Declaration, Minister for Trade and Commerce, Honble Murasoli Maran
commented that rich countries pursued only commercial prosperity rather developing
countries realize conservation.43 The following decisions are taken,
(i)

Reaffirms that special and differential treatment;44

(ii)

Appropriate level of SPS protection,45 Approaches to technical assistance to

implement TBT,46 and proposals to treat SCM.47

38

Daniel C. Esty, Economic Integration and Environment, in Norman J. Vig and Regina S. Axelord
(Eds.,) The Global Environment Institutions, Law and Policy, (Earthscan, London, 1999) pp 190 - 209 at
191.
39
Jagdish Bhagwati, In Defense of Globalisation, (Second Impression, Oxford University Press, Oxford
2008), p.151.
40
Supra note 25, at 8.
41
Principle 16, Supra note 19.
42
Ministerial Declaration, Fourth Session, Doha, 9-14 November, 2001, WT/MIN(01)/17, 20th November
2001; Fifth Session, Cancun, WT/MIN(03)/ST/7, 10-14 September, 2003; and Sixth Session, Hong-Kong,
13-18
December,
2005,
WT/MIN/(05)/DEC,
22
December,
2005
(05-6248),
http://commerce.nic.in/trade/intrnational_trade_md_.asp last visited on 24.02.2013.
43
Ministerial Declaration, Fourth Session, Doha, 9-14 November, 2001, WT/MIN(01)/17, available at
http://commerce.nic.in/trade/intrnational_trade_md_doha.asp last visited on 24.02.2013.
44
Para 1, ibid.

226

In 2003, Cancun Declartaion, Mr. Arun Jaitley has remarked that we do not believe
that all the Singapore issues are trade related. Besides the disciplines proposes in this area
would require new policy actions to be taken only in developing countries.48 Para. 30 of
the Hong Kong Ministerial Declaration describe that Indias recommitment to para. 31 of
the Doha Declaration;49 and assured that specific obligations that are set out in trade
agreements and multilateral agreements by the UNCTE.50 India also made proposals for
trade facilitation by transfer of technology51 and implementation.

India being a original Member States, effectively represented in the dispute

settlement process. India filed more than 15 claims against different countries, including
United States of America. There are more than 22 claims were filed against India
challenging the environmental measures that are taken under Article XX of GATT. This
contribution proves an effective representation in adopting measures to conserve resources
with the strict compliance of both international trade law as well as international
environmental law.

Over past decades, Indian Exports have registered strong growth across all the
major commodity categories. Agriculture, Leather, Textile, Marine resources (Shrimp
culture).
6. 3. 1. Legislative and Policy Measures
45

Para 3, Supra note 42.

Para 5, ibid.
47
Para 10, ibid.
48
Ministerial Declaration, Fifth Session, Cancun, WT/MIN(03)/ST/7, 10-14 September, 2003, at para.11.
49
Para 31, WTO Doc. WT/MIN (01)/Dec./1, available at www.wto.org, last visited on 24.04.2013.
50
Paras 30 and 31 Ministerial Declaration, Sixth Session, Hong-Kong, 13-18 December, 2005,
WT/MIN/(05)/DEC, 22 December, 2005 (05-6248);
51
Paras 33, 39, 43 and 57 ibid.
46

227

Article XX of GATT52 signifies that any trade restriction on public health and
sanitation are the primary objective of the domestic legislation.53 The VIIth Schedule of the
Constitution authorize the state to make laws on public health and sanitation. However,
the no state can enact laws imposing conditions on the above cited trade restrictions, which
is not a purview of the state legislatures. Recognising the international commitment both
GATT-WTO and MEAs; to improve the market access at the global level and to facilitate
and sustain domestic market a number of measures have adopted in legislative and
administrative and level covering water,54 air,55 land56 and the environment.57 Number of
environmental related legislations also amended suitably, mutatis mutantis.58

Philippe Sands describes that the concept of Sustainable Development requires that
environmental considerations be integrated into economic and other development plans,
programmes and projects and that development needs are taken into account in applying

52

Article XX (g) of General Agreement on Tariffs and Trade, 30 October 1947, 61 Stat, A3, 55 U.N.T.S.
187.
53
Supra note 4.
54
Water (Prevention and Control) Act, 1974 Act. No. 6 of 1974 as amended by Act No 44 of 1978 and 53 of
1988; Water (Prevention and Control) Cess Act, 1977, Act No. 36 of 1977 as amended by Act Nos. 53 of
1991 and 19 of 2003.
55
Air (Prevention and Control) Act, 1981 Act No. 14 of 1981 as amended by Act No. 47 of 1987.
56
Wild Life Protection Act, 1972, Act No. 53 of 1972; Forest Conservation Act, 1980, Act No. 69 of 1980.
57
Section 2 (a) environment includes water, air and land the interrelationship which exists among and
between water, air and land and human beings, other living creatures,, plants and micro-organisms and
property, Supra note 16.
58
There are legislations have amended suitably, eg. Act. No. 6 0f 1974 as amended by Act No. 44 of 1978
and 53 of 1988; Act No. 36 of 1977 as amended by Act Nos. 53 of 1991 and 19 of 2003; Act No. 47 of
1981; Act No. 44 of 1978 and 53 of 1988; S. Bhatt, Ecology and International Law 22 IJIL (1982), pp
422-438 at 429; see also S. Bhatt, Environmental Protection and Sustainable Development, (A. P. H.
Publishing Corporation, New Delhi, 2004), p. 135.

228

environmental objectives.59

Most of these environmental legislations at the stage of

infancy and these do not make mandatory to conduct environmental impact study before
setting up of an industrial establishment.60 The recent enactment also mandate that as a
part of precautionary measures, hazardous units are required to submit to the government a
detailed disaster management plans and an assessment of the units possible environmental
impact.61 This also indirectly compels that the corporate are liable in payment of monetary
damages when any activity is caused damage to the environment. This is a paradigm shift
from state responsibility to entity responsibility that is termed as the Corporate Social
Responsibility.

In addition to the legislative measures both national and domestic level; reaslising
the necessity and expedient the appropriate institutions and departments are authorized to
frame policies. These measure remarks that the contribution of governments in enhancing
their role in conservation of resources to achieve environmental sustainability in India.
However, for the purpose of this researcher, some of the prominent policies are referred.
Let us examine in detail.

59

Philippe Sands, Environmental Protection in the Twenty First Century: Sustainable Development and
International Law in Richard L. Revesz, Philippe Sands and Richard Stewaert (Eds.,) Environmental
Law, The Economy can Sustainable Development, (Cambridge University Press, Cambridge, 2001), pp
369-409 at 374.
60
Saleem Akhtar, Mohd. Shahid and Mohd. Khalid, Enforcement of Environment Laws: Problems and
Prospects XII KULR (2005), pp 40-61.
61
Companies Act, 2013, Act No 18 of 2013.

229

6. 3. 1. 1. Forest Policy

Forest is a state property that can be administered by the concerned states.62 Since
the establishment of East India Company, the British Rulers had adopted innumerable
measures. The Independent India also need some effective contribution on the same. The
Various State governments are also authorizes to make appropriate amendments in the
Forest Act. Forest Conservation Act, However, the National Forest Policy, 195263 among
others, is based upon the need for evolving a system of complimentary land use, need for
checking denudation in mountainous regions, soil erosion and invasion and the need for
sustained supply of timber and other forest produce. After the UNCHE, states power to
legislate was limited by inserting Entry 17-A to List III.64

Forest Policy of 1988,

remarkably recognizes that the intrinsic value of forests that also helps in maintenance of
ecological stability through preservation and conservation of the natural heritage etc.,65
The Forest Policy 1992 also remarks the need for forest conservation to achieve
environmental sustainability. Joint Forest Management describes the other forms of public
participating; including, public comment, consultation and right to know.66

62

Entry 19 Forests, omitted by Constitution Fourty-Second Amendment Act, 1976 w.e.f. 3.1.1977. Now this
Entry is shifted to Entry 17-A, List III of the Constitution of India, 1950.
63
National Environmental Policy, 1952, Ministry of Food and Agriculture, Resolution No. 13-1/52-F, 12th
May, 1952, available at forest.ap.nic.in/forests%20policy1952.htm, last visited on 21.09.2013.
64
Entry 17-A Forests, inserted by Constitution Fourty-Second Amendment Act, 1976 w.e.f. 3.1.1977.
65
National Forest Policy, Resolution No.3-1/86-FP, Ministry of Environment and Forests, 7th December,
1988, available at envfor.nic.in/sites/default/introduction-nfp.pdf, last visited on 21.09.2013.
66
Approach Paper to the Draft Ninth Five Year Plan, Govt. of India, (1997-2002)

230

6. 3. 1. 2. Environmental Impact Assessment (EIA)

Environmental Impact Assessment (EIA) is part of precautionary approach.

Principle 7 and Agenda 21 of the Rio Declaration67 noting that the idea of public
partnership based on the concept of public participation in environmental decision making
at all levels.68 EIAs help to promote the integration of environmental and economics and
to anticipate potentially adverse scale effects of trade and development. EIA is mandatory
part of the EPA in India.69 EIA is also called as Social Impact Assessment (SIA)70 and
Sustainability Impact Assessment (SIA).71 There are various stages and process involved
in EIA. Arvind Jasrotia describes that access to environmental information is the principle
means by which environmentally conscious stakeholders may evaluate compliance by the
concerned parities with environmental standards, legal requirements and covenants.72
Tiwari remarks that in all level of public participation in environmental decision making
process, namely, EIA, public comment and consultation etc. must be integrated with the
right to know in order that it become more meaningful, purposeful and efficacious.73

67

Supra note 19; Stanley P. Johnson, The Earth Summit: The United Nations Convention Environment
Development (UNCED), International Environmental Law and Policy Series, (Graham &
Trotman/Martinus Nijhoff, London, 1993).
68
Tiwari. G. S. Conservation of Biodiversity and Techniques of Peoples Activism, 43 JILI (2001), pp
191-213.
69
Supra note 16; In Indian Council for Enviro Legal Action v. Union of India, (1996) 5 SCC 218, para. 27,
court has reiterated that the EIA is not a mere academic exercise.
70
Mohan Munasighe, Sustainable Development in Practice, (Cambridge University Press, Cambridge,
2009), p. 128; Richard Howitt, Rethinking Resource Management - Justice Sustainability and
Indigenous People, (Routledge, London, 2001), p. 324; see gen. Jane Holder and Maria Lee,
Environmental Protection, Law and Policy, (Second Edition, Cambridge University Press, Cambridge,
2007), pp 548-610.
71
Clive George and Colin Kirkpatrick, Trade and Development: Assessing the Impact of Trade
Liberalisation on Sustainable Development, 38 Journal of World Trade (2004), pp 441-469 at 469.
72
Arvind Jasrotia, Environmental Protection and Sustainable Development: Exploring the Dynamics of
Ethics and Law, 49 JILI (2007), pp 30-59 at 54.
73
Supra note 68 at 219; Leelakrishnan, Environmental Impact Assessment: Legal Dimensions, 34 JILI
(1992), pp 545-557; See gen., E. Gellhorn, Public Participation in Administrative Proceedings 81 Yale

231

In catena of cases, the judiciary has remarkably considered the relevance of EIA in
conservation. In Narmada Bacho Andolan v. Union of India74 and in Lafarge Umiam
Mining (P) Ltd., v. Union of India75 the applicability of EIA Notification was clarified and
held that the EIA Notification 1994 applies only prospectively and directed for an ex post
facto approval. In Alaknanda Hydro Power Company Ltd v. Anuj Joshi and Others76 the
court reiterated that it is a vital to have in place all safety standards in which public can
have full confidence to safeguard them against risks which they fear and to avoid serious
long term or irreversible environmental consequences. Veena has remarked that, there is a
need to avoid undue pressures to carry out overly complicated EIAs that might further
adversely affect trade and distract from emerging efforts in India to integrate
environmental consideration into economic policy making.77

Following the statutory

directives, to the extent delegated public power must be held accountable of the global
public interest in environmental protection78 where and when they act.79

LJ (1971), pp 359- 371 at 316; Alastair R. Lucas, Legal Foundations for Public Participation in
Environmental Decision Making 16 Natural Resource Journal (1976), pp 73-102 .
74
(2000) 10 SC 664.
75
(2011) 7 SCC 338.
76
(2013) MLJ 579.
77
Supra note 28.
78
Richard Howitt, Rethinking Resource Management Justice Sustainability and Indigenous People,
Routledge (2001), p. 326; James Cameron and Ruth Mackenzie, Access to Environmental Justice and
Procedural Rights in International Institutions in Alan Boyle and Michael Anderson (Eds.,) Human
Rights Approaches to Environmental Protection, (Calendran Press and Oxford, 1996), pp 129-152 at 129;
Supra note 68, at 407.
79
Richard L. Revesz, Philippe Sands and Richard Stewaert (Eds.,) Environmental Law, The Economy can
Sustainable Development, (Cambridge University Press, Cambridge, 2001), pp 171-244 at 223; Philippe
Sands, Compliance with International Environmental Obligations: Existing International Legal
Arrangements, in James Caemeron and Peter Roderick, (Eds.,) Improving Compliance with International
Environmental Law, (Earthscan, London, 2006) pp 48-81at 55; Loather Gundling, Public Participation in
Environmental Decision Making in Michael Bothe, (Ed.,), Trend in Environmental Policy and Law,
(IUCN, Gland, Switzerland, 1980), pp 131-153; See gen. Shibal Meher, Management of Natural
Resources, Peoples participation and Sustainable Development - A Study of Watershed Management 20
IAASI Quarterly (2002), pp 59-74.

232

6. 3. 2. 3. Eco-Mark/Eco-Labelling

In 1991, integrating environmental considerations; government launched the ecolabelling scheme known as Eco-Mark in various sectors.80

At present, Eco Mark and

Ecolabeling is a mandatory part of sustainable governance.81 The mark describes any product
which is made, used or disposal of in a way that significantly reduces the harm it would
otherwise cause the environment could be considered as environment - friendly product. EcoMark scheme is remarkably encouraging industries to produce environment - friendly
products. The criteria of the Indian Eco-mark are based on from raw material extraction to
manufacturing to disposal. There are three stages involved in the Eco-Mark scheme, such as (i)
to determine product categories for the scheme; (ii) identification of a specific product and
recommendation of individual criteria to be adopted; and (iii) the Bureau of Indian Standards
(BIS) assesses and certifies the products and draws up a contract with the manufacturers.
There are number of institutors are working towards issuing certification in the form of ISI.
However, the problem of obtaining multiple eco-labelling will be solved through the
agreement of mutual recognition of eco-labelling schemes across countries. This is also help to
achieve green consumerism.82

80

G.S.R. 85 (E), Ministry of Environment and Forest, 20th February, 1991, available at
envfor.nic.in/legis.html last visited on 20.11.2012.
81
UNCTE Annexure, GATT Ministerial Declaration, 1994.
82
Amirthalingam. S Green Consumerism-An Oxymaron 1 ALUJ (2010), pp 47-55; see gen. Amit Singh,
International Legal Aspects of Eco-Labelling 48 IJIL (2008), pp 45-74; Surya P. Subedi, Balancing
International Trade with Environmental protection, 25 Brooklyn Journal of International Law (1999),
pp 373-405.

233

6. 3. 2. 4. Sustainable Developmental Policy

The attainment of sustainable development requires promulgation of supporting

policies such as forests, industrial, agricultural and irrigation policies; in 1990s the government
launched National Conservation Strategy (NCS) as Sustainable Development Policies.

6. 3. 2. 4. 1. National Conservation Strategy and Policy Statement on Environment and

Development

In 1988, the Ministry of Environment and Forests (MoEF) constituted an expert

committee to recommend a framework and an action plan for the conservation of resources.
The Report of an expert was accepted as NCS, 1992.83

The Preamble of the Strategy

acknowledges that economic development of a nation is to satisfy the needs and values of all
interest groups without foreclosing future options. The strategy also declares that the
governments commitment to re-orient policies and action in unison with environmental
perspective.84

6. 3. 2. 4. 2. National Environmental Policy, 2004

The key environmental challenges that the country faces relate to the nexus of
environmental degradation with poverty in its many dimensions, and economic growth.85
These challenges are intrinsically connected with the state of environmental resources, such as
land, water, air and their flora and fauna. The National Environmental Policy, 2004 intended
83

Ministry of Environment and Forests, Government of India, National Conservation Strategy and Policy
Statement on Environment and Development, (1992) available at www.envfor.nic .in, laws visited on
20.12.12012.
84
Envfor.nic.in/sites/default/files-nep2004e.pdf , last visited on 24.10.1012.
85
Paras. 1.1 and 1.4 of NCS, ibid.

234

to be a guide of action: in regulatory reform, programmes and projects for environmental

conservation; and review and enactment of legislation by agencies of the Central, State and
Local Governments. The key principles of the NEPs as follows:86
-

Human beings are at the centre of Sustainable Development concerns;

Right to Development;

Environmental protection is an integral part of the development process;

The precautionary approach and Economic efficiency;

Equity and Public Trust Doctrine; and

Environmental standard setting.

6. 3. 2. 4. 3. National Environmental Policy, 2006

The following specific actions would be taken:87
a) Institutionalise a holistic and integrated approach to the management of environment
and natural resources;
b) Identify emerging areas for new legislation, due to better scientific understanding
economic and social development, and development of multilateral environmental
regimes, in line with the National Environmental Policy;
c) Review the body of existing legislation in order to develop synergies among relevant
statues and regulations, eliminate obsolescene, and amalgamate provisions with similar
objectives, in line with the National Environmental Policy;
d) Encourage and facilitate review of legislation at the level of State and Local
Governments with a view to ensuring their consistency with this policy;
e) Take steps to adopt and institutinalise techniques for environmental assessment of
sector policies and programmes to address any potential adverse impacts, and enhance
potential favourable impacts; and
f)

Ensure accountability of the concerned levels of Government in undertaking the

necessary legislative changes in a defined time-frame, with due regard to the objectives

86
87

Envfor.nic.in/sites/default/files-nep2004e.pdf , last visited on 24.10.1012.

Approved by the Union Cabinet on 18 May 2006, available at www.envfor.nic.in. nep.2006e.pdf, last
visited on 24.10.2012.

235

and principles of National Environmental Policy, in particular, ensuring improved

access to the necessary environmental resources.

6. 3. 2. 4. 4. Vision Statement on Environment and Health

The Vision Statement on Environment and Human Health reiterates the

relationship between the environment and its impact on human health.88 It also offers a
comprehensive approach to the environmental health management plans, which would be
systematic approach to estimate the burden of disease and injury due to different
environmental pollutants.

Considering the non enactment of effective legislation and non implementation of

the existing commitment both regulatory and preventive; Constitutional Courts a priori
served the needs for effective conservation of resources between generations. The judicial
intervention prima facie not only that compels to take appropriate means but also suggest
suitable measure in recognizing the international commitment for the survival of the
present and future generations. The judicial remedy can be classified under four broad
categories, such as, Tort (common law remedy), Crime, Statutory remedy and
Constitutional remedy. For the purpose of Sustainable Development this part covers only
the Constitutional remedy for violation of environmental right.

This remedy can be

enforce only against the public functionaries. Let us examine the contribution of judiciary
in recognising the mandate of the concept of Sustainable Development in settling
developmental and environmental controversies in India.
88

Approved by the Union Cabinet on 14 December 2002, available at www.envfor.nic.in.visenvhealath.pdf,

last visited on 24.09.2012.

236

6. 4. Judiciary on Development and Environment Controversy

The above analysed various principles and guidelines describe that states
commitment towards conservation of resources both for present and future generations.
However, the existing environmental legislations and policies are not helped in balancing
the development and environmental issues. This inadequate environmental measures and
non availability of appropriate measures to effective conservation of the resources trade
and development controversies compel the constitutional courts in evaluating the existing
legislations and policies. Realising the right to life and livelihood by ensuring the complete
justice the constitutional courts widen interpretative technique and discovered the judicial
activism.89 Although the Judiciary has widened its interpretative approach towards various
dimensions; for the purpose of this part let us examine the evolution of the judicial
activism with special emphasis on development and environment controversies.

In the late 1970s, Constitutional courts with an advent of the Public Interest
Litigation (PIL),90 dealt with environment versus development controversy, such as
development projects, mining and quarrying, litigation concerns big dams, gas leak
disaster, hazardous wastes from industries, pollution from animal slaughter houses,
protection of wetlands, water pollution, noise pollution, access to environmental
information and coastal zone development and protection of livelihood and against

89

S. P. Sathe, Judicial Activism: The Indian Experience, 6 Wash.U.J.L. & Poly (2001), pp 29-52 at 40;
see also, J. P. Banswal, Supreme Court on Judicial Restraint and Judicial Activism, in J. S. Singh and D.
Gopal (Eds.,) Glimpses of Ecology, (India Scientific Publishers, Jaipur, 1985).
90
Supra note 85, at ; Dr. J. L. Aparajit, and Miss Adhara Badhe, Judicial Response Towards the Protection
of Environment : A Critical Evaluation, 1 Journal of Indian Legal Thought (2003), pp 97-141.

237

environmental degradation.91 Public Interest Litigation also called as Social Action

Litigation and Representative Action Litigation.92

Developmental policies of the government considerably had shown a preference to

development rather than protection of the environment.93

In development and

environmental controversies fundamental rights are discussed and detailed orders were
given based upon the considerations of equity when a person approached with pro bono
publico. This liberalization of locus standi approach provides the right of persons to access
courts.94 The court justifies such expansion of rights not only to its power but also the
DPSP, 48-A and Fundamental Duties, 51 (A) (g) of the Constitution.95 The judicial
contribution on Sustainable Development also significantly remarked that right to healthy

91

See gen. Geetanjali Chandra, Public Interest Litigation and Judicial Activism in India, (Deep and Deep
Publications, New Delhi, 2005), ch. 3.
92
Upendra Baxi, Taking Suffering Seriously: Social Action Litigation in the Supreme Court of India,
29 Intl Commission of Jurists Rev. (1982), pp 37-49; Supra note 90, Alan Boyle and Michael Anderson,
(Eds.,) Human Rights Approaches to Environmental Protection, (Oxford University Press, Oxford, 1999),
pp 157-175 at 164.
93
Krishna Chandra Jena, Ecological and Environmental Protection Movements: A Brief Conspectus AIR
(J) 2005, pp 288-294; See gen. Choudhry, Sustainable Development and Environment, 92 Cuttack Law
Times (2001), pp 93-98.
94
Bharat H. Desai and Balraj Sidhu, On the Quest for Green Courts in India 3 Journal of Court
Innovation (2010), pp 79-110 at 97; see gen. Markandey Katju, Justice, Access to Justice with Special
Reference to Socio-Economic Rights AIR (J) (2003), pp 117-121.
95
Santhosh Kumar Pathak, Fundamental Duties: Their Importance AIR (J) (2005), pp 361-366.

238

environment96 as part of life and livelihood97 and led level of a Constitutional prescription
towards a rational management of resources.98

In one of the earliest cases, for the first time in Society for Protection of Silent
Valley v. Union of India99 court held that the construction of a hydroelectric project leads
to extinction of several endangered species of animals and birds and deforestation that
would affect climatic condition and would interfere with the balance of nature. In Kinkri
Devi v. State,100 the helped to realize the relationship with Article 14,101 Article 19102 and
Article 21103 of the Constitution of India as a part of environmental protection.

In the

present case, governments arbitrary grant for mining activities was challenged in violation
of Article 14. The court held that fundamental right to carry on any occupation, trade or
business guaranteed in Article 19(1) (g) of the Constitution is subject to reasonable
restrictions as provided for in Article 19(6) of the Constitution.104 The court accepted this
version and held:

96

Kuldip Singh, Environmental Protection The Role of Judiciary CULR (2004), pp 15-24; Michael
R.Anderson, Individual Rights to Environmental Protection in India in Alan Boyle and Michael
Anderson (Eds.,), pp 199-225 at 201.
97
Cunningham, Public Interest Litigation in the Indian Supreme Court: A Study in Light of American
Experience, 29 JILI (1987) pp 494-511 at 511N. S. Soman and P. S. Seema, Environmental Issues:
Response to Indian Courts with Special Reference to the Supreme Court of India 28 The Academy Law
Review (2004), pp 137-162; See gen. Justice V. G. Palshikar, Human Rights and Environmental
Protection, AIR (J) (2003), pp 93-99; .
98
David Ambrose, Social Justice Through Environmental Protection: The Role of Indian Judiciary in Dr
T. N. Sastry (Edn.,) , Fifty Years of Indian Independence and the Polity, (A. P. H.Publishing Corporation,
New Delhi, 2000), pp 95-110 at 98.
99
WP Nos. 2949 and 3025 of 1979, Kerala High Court.
100
AIR 1987 HP 4 at para 9.
101
Article 14 reads: Equality Before Law and Equal Protection of Laws: The State shall not deny equality
before law and equal protection of Laws. However, there are exceptions recognised in the name of
protection discrimination only to achieve the constitutional goals that are enunciated both in the Preamble
and Part IV of the Constitution of India, 1950.
102
Article 19 Fundamental Freedoms of Citizens of India, Constitution of India, 1950.
103
No person shall be deprived of life or personal liberty except according to procedural established by law.
104
Article 19 (6) describes the power of state to impose reasonable restrictions against the freedom enshrined
in Article 19 (g).

239

The attainment of the Constitutional goal of the protection and improvement of

the natural, wealth and environment and of the safeguarding of the forests, the
lakes, the rivers, and the wildlife and to protect the people inhabiting the
vulnerable areas from the hazardous consequences of the arbitrary exercise of the
power of granting mining leases and of indiscriminate operation of the mines on
the strength of such leases without due regard to their life, liberty and property, the
court will be left with no alternative but to intervene effectively by issuing
appropriate writs, orders and directions including the direction as to the closure
of mines, the operation whereof is proving to be hazardous and the total
prohibition of the grant or renewal of mining lease till the government evolves a
long term plan based on a scientific study with a view to regulating the exploitation
of the minerals in the State without detriment to the environment, the ecology, the
natural wealth and the resources and the local population.

In Rural Litigation and Entitlement Kendra v. State of U. P.,105 the Supreme Court
dealt with matters relating to environment and ecological balance. In Sachidanada Pandey
v. State of West Bengal,106 Chinnappa Reddy, J. rendered an elaborate and soul searching
exposition of the importance and sanctity of the natural environment. Interestingly, in
State of Tamil Nadu v. Abu Kavur Bai,107 the court has observed that material resources are
wide enough to cover not only natural or physical resources but also movable and
immovable properties. Property rights of the state is inalienable.108

The concept of

Eminent Domain is authorizing the state to acquire land compulsorily for public purpose
under the land acquisition Act, 1894.109 However, material resources allocation and usage
there are difference of opinion.110

The land owners are authorized to get compensation

105

AIR 1997 SC 1228.

AIR 1987 SC 1109.
107
AIR 1984 SC 326.
108
Article 39 (b) and (c) of the Constitution of India, 1950; Dr. A. David Ambrose, Directive Principles of
State Policy and Distribution of Material Resources with Special Reference to Natural Resources Recent
Trends 55 JILI (2013), pp 1-20 at 2.
109
Land Acquisition Act, 1894, I of 1894.
110
Spectrum Allocation Case, (2012) 3 SCC 1; and (1999) 6 SCC 667.
106

240

including money and alternative rehabilitation111 In State of Karnataka v. Ranganatha

Reddy112 the Supreme Court held that
Material resources of the community in the context of re-ordering the national
economy embraces all the national wealth, not merely natural resources, all the
private and public resources of meeting materials, not merely public possessions.
Everything of value or use in the material world is material resource and the
individual being member of the community his resources are part of those
community.
In Subhash Kumar v. State of Bihar,113 Justice Kuldip singh has remarked that
Article 21 includes the right of enjoyment of pollution free water and air for enjoyment of
life.114 In Chetriya Pardushan Mukthi Sangarsh Samithi v. State of U.P.,115 in L.K.
Koolwal v. State of Rajasthan,116 in Damodar Rao v. Municipal Corporation,
Hyderabad,117 in Lakshmipathy v. State of Karnataka,118 in Sayeed Masood Ali v. The State
of M.P.,119 in M. P. Ram Babu v. The District Forest Officer,120 in M.C. Mehta v. Union of
India and Ors,121 M.C. Mehta v. Union of India and Ors,122 M.C. Mehta v. Union of India
and Ors123 the court also reiterated that material resources of the community are not
confined to public resources but include all resources, natural and man-made public and
private owned.

111

Article 31 A, B and C of Constitution of India, 1950.

AIR 1978 SC 215 at para. 95
113
AIR 1990 SC 420.
114
Kuldip Singh, Environmental Protection - The Role of Judiciary, CULR (2004), pp 15-24 at 19.
115
AIR 1990 SC 2060.
116
AIR 1988 Raj. 2
117
AIR 1987 AP 171.
118
AIR 1992 Kart. 57.
119
AIR 2001 MP 220.
120
AIR 2002 AP 256.
121
(1998) 6 SCC 60.
122
JT 2008 (6) SC 542.
123
JT 1997 (1) SC 221.
112

241

In K. M. Chinnappa v. Union of India124 the Apex court observed that

It cannot be disputed that no development is possible without some adverse
effect on the ecology and environment, and the projects of public utility
cannot be abandoned and it is necessary to adjust the interest of the people
as well as necessity to maintain the environment. Where the commercial
venture or enterprise would bring in results, which are far more useful for
the people, difficulty of a small number of people has to be by-passed. The
balance has to be struck between the two interests.
In Essar Oil Ltd., v. Halar Utkarsh Samiti and Ors,125 and in D. Saravanan v.
Union of India,126 and in Dr. Meenakshi Bharath v. State of Karnataka,127 the court held
that the concept of Sustainable Development is not a empty slogan that requires pragmatic
view of implementations to conserve the resources both for present and future generations.

the need of ecological impact, a delicate balance between it and the

necessity for development must be struck. The adherence to sustainable
development principles is a sine-qua-non for the maintenance of the
symbiotic balance between the rights to environment and development.
The right to sustainable development cannot be singled out. The concept is
to be treated as an integral part of life under Article 21.

In Bahvesh D. Parish v. Union of India, the court remarkably analysed the

contributory and destructive aspects of the Liberalisation and Globalisation policy. The
court also reiterated need for harmanisaion of economic policies and environmental
legislations.
The consequences of such interdiction can have large-scale ramifications and
can put the clock back for a number of years. The process of rationalisation
of the infirmities in the economy can be put in serious jeopardy and,
therefore, it is necessary that while dealing with economic legislations, this
Court, while not jettisoning its jurisdiction to curb arbitrary action or
124

AIR 2002 SC 724.

AIR 2004 SC 1834.
126
(2009) 4 MLJ 917.
127
2012 (4) Kar LJ 248.
125

242

unconstitutional legislation, should interfere only in those few cases where

the view reflected in the legislation is not possible to be taken at all.128

In a leading case, the Supreme Court categorically reiterated that mandate of the
state to provide public health at all level referring the decisions of the WTO-DSB.129
For the first time in the Indian judicial history, the Supreme Court used the
provision of the Code of Criminal Procedure130 for the cause of public interest in cleaning
garbage and public drainage.131

The Supreme Court has reiterated the functions the

municipal corporations including the removal of nuisance, cleaning of garbage and public
drainage.132 Critics argued that such a kind of judicial exercise is a step forward in
fulfilling the duties of state and citizens.133 Armin has criticized the contribution of the
courts on environmental disputes, as an administrative exercise.134

In India, the exact link and controversy on environmental protection and

developmental activities are immeasurable. However, for the purpose of the research, the
researcher is limiting his study only with these four subjects.

The very reason for

confining with these subjects, these are the subjects attracts more foreign investment gives
more foreign exchange money, employment opportunity and created health related issues.
Let us examine the available policy means to regulate these industries and related issues.

128

(2000) 5 SCC 471.

Kalyaneshwari v. Union of India, (2011) 5 SCC 287.
130
Section 133 of Criminal Procedure Code, 1973, Act No. 2 of 1974.
131
See gen. Dr. A. David Ambrose, Green Crimes Need Red Signal, 23 The Year Book of Legal Studies
(2000), pp 21-34 at 22; Rama Joga Rao, Use of Criminal Law Machinery for Environmental Protection,
7 SCC (J) (2001), pp57-63.
132
Municipal Corporation, Ratlam v. Vardichand, AIR 1980 SC 1622.
133
C. M. Jariwala, Governments Inactions in Environmental Matters: A Decades Exposure 46 JILI
(2004), pp 501-521 at 501.
134
Supra note 18, p. 21.
129

243

6. 4. 1. Aquaculture

Aquaculture is not an organised industry rather a developmental activity in the

form of trade. However, Most of this Shrimp Culture is established and set up only in the
sea shore. Although there is no direct law to regulate and activities in the sea shore, under
the penumbra of environment, the Central Government passed the Coastal Regulation
Zone Notification (CRZ)135 under EPA 1986.136 For the first time, in S. Jagannath v.
Union of India,137 the petitioner contented that the business to develop prawn farms
allowed in the coastal areas in violation the case brought into force for the nonimplementation of the CRZ. For prima facie NEERI in its report indicated that due to the
impact of aquaculture, the environment is adversely affected. The report covers the impact
including contamination of surface and groundwater, soil infertility and destruction of
mangrove vegetation. Kuldip Singh, J. held that aesthetic qualities, recreational utility of
the coastal area has to be maintained. Any activity which has the effect of degrading the
environment cannot be permitted. The court further held that the traditional type of shrimp
farming is environmentally benign and pollution free. But the modern technological type
of farming using chemicals is creating more pollution and has degrading effect of the
environment and ecology and therefore, to prevent the damage caused by aqua farming,
several directions were given, including the direction to close down the Aquaculture. The
court also held that the employees of the industries directed to be closed are entitled to
retrenchment compensation and six years of wages as additional compensation.

135

S.O.1122(E), 29/2/1991, moef, 19th February, 1991 as amended S. O. 19 (E), 06/01/2011, moef, 6th
January, 2011.
136
Supra note 16.
137
(1997) 2 SCC 87.

244

6. 4. 2. Forest and Mining

Forest is material resources of the state,138 which brings revenue and supply of raw
materials to industries and act as a source and help in maintain ecological balance. The
states more often than not want to transfer the forest land into non-forest purposes, such as
Power Plant, Construction of dams or increasing the height of dams and Interlinking of
rivers.139 These developmental activities can create a problem with ecological security. To
maintain ecological balance by conservation of resources there are legislative140 and policy
measures141 and institutions142 with a view to protect forest from various de-forestation
activities. Various techniques for valuing biodiversity that have been developed to assess
the value of living resources for stakeholders interest143 including the traditional practice of
profit-a-prendre.

National Mineral Policy, 1993144 categorically reiterate the need for conservation of
resources for achieving Sustainable Development. In Goa Foundation v. Konkan Railways
Corporation145 implementation of the CRZ notification146 and mandate to procure
adequate EIA were consider an important for the economic and social structure. In Goa

138

Supra note 2.
Abdul Haseeb Ansari, Poverty Link to the Environment: International and National Perspective, 50
IJIL (2010), pp 13-44 at 13 and Akileshwar Pathak, State, Environment and Law Eco. & Pol. Wkly
(1994), pp 3138-3141
140
Supra note 1 and Supra note 56.
141
Forest Policy, 1952 and Forest Policy 1988.
142
Pollution Control Board, Chief Wildlife Warden, Forest Officer, and Central Zoo Authority.
143
See gen. A. Prasanna, Forest and Law: An Appraisal from the Environmental Perspective, 19 Academy
Law Review (1995), pp 65-105.
144
Para 7. 13 of National Mineral Policy, 1993, available at www.envfor.nic.in, last visited on 22.10.2013.
145
AIR 1992 Bom. 471.
146
Supra note 135.
139

245

Foundation v. Diksha Holding Ltd.,147 the focal point of consideration was the
environmental degradation of existing sand dunes on the sea front of Goa. In Bombay
Environmental Action Group v. State of Maharashtra,148 the court held that establishment
500 mega watt thermal power station necessary to balance environmental requirements
with the needs of the community at large since all the possible environmental safeguards
minimum standard of life and living.

In Hindustan Motors Ltd., v. Prof. Lakshmisagar and Another,149 a diversion of

forest land into non-forest purpose was questioned. A balance is required to be maintained
in the development and protection of environment; public utility which is revenue earning,
the category to which the project falls, a non-revenue earning projects.

In D.L.F.

Universal Ltd., v. Prof. A. Lakshmi Sagar,150 the court held that developmental activity in
the face of apprehensions that this would adversely affect quantity and quality of water in
the river and water reservoir. In Executive Engineer v. E&E Protection Samithy,151 to
respond the contention for cutting bamboo in the reserved forest; the Court instituted an
expert committee to look into the question of environmental damage caused due to the
cutting deteriorating in quality of the bamboo on the ecology. In Sariska Sanctury Case,152
the Supreme Court enlightened the significance of mining operations and duty of the state
to make appropriate measure for conservation. In Krishnadevi Malchand Kamathia v.
Bombay Environmental Action Group153

destruction of Mangrove forest disregarded

147

AIR 2001 SC 184.

AIR 1981 Bom. 301.
149
AIR 2000 SC 3751.
150
(1998) 7 SCC 1,
151
AIR 1993 Ker. 32.
152
Tarun Bharat Singh, Alwar v.Union of India, Writ Petition (Civil) No. 509 of 1991, 14 May 1992.
153
(2011) 3 SCC 363.
148

246

orders of Supreme Court violating norms of environmental law. The same has been
reiterated in Lafarge Uranium Mining Pvt. Ltd., v. Union of India and Others.154

In Samatha v. State of A. P.155 has considered as a welcome gesture from the

judiciary to the tribal people. The question involved in the present case is transfer of tribal
land to establish some industrial houses.

K. Ramaswamy and S. Saghir Ahmed JJ, have

reiterated the mandate of conservation of resources as a constitutional duty of the state. In

Bangalore Medical Trust v. B. S. Mundappa,156 the court restrained an attempt to transfer
of public land into a private person. The court held that free and healthy air in beautiful
surroundings is a gift from the people to themselves. Its importance has multiplied with
emphasis on environment and pollution. In modern planning and development it occupies
an important place in social ecology In T. N. Godavarman Thirulmalkpad v. Union of
India157 the Supreme Court issuing sweeping directions to oversee the enforcement of
forest laws across the nation by quoting;
environment is not the state property and is national asset. If it becomes
necessary for economic development to use forests for non-forest purpose,
then before grant of permission for diversion of forest land, such diversion
can be made up by adopting both short term measures as well as long term
measures one of it being a regeneration programme. Natural regeneration
is a long process. It requires huge amounts and a policy. It requires proper
use of funds for regeneration of depleted forest and ecology. The natural
resources like forests are in trust with the present generation. In this light,
various statutes have been enacted by the Parliament.

154

2011 (4) UJ SC 2301, p. 2325.

AIR 1997 SC 3297.
156
AIR 1991 SC 1902.
157
AIR 2000 SC 1636.
155

247

6. 4. 3. Leather

Leather is one of the leading business in India which gives more foreign exchange
money from time immemorial. The Vellore Districts, Arani, Kudiaytham, Jolarpet, is the
business corridor of the leather business. This business establishment was launched by
Moghals. The Leather business in not only in the form of cottage and small scale industry
but also organized business. Most the trade and developmental activities are carried out at
the shore or river Balar that is the only river supplies water to the above mentioned areas.
The leather business also gives employment opportunity and generates immeasurable
quantum of pollution. This part is not specifically covers extent application of processes
involved in the textile business and import/export measure rather it covers available
legislations and policies to curb the impact of textile industry related pollution and its
impact the environment. The aggrieved native people approached the court for want of life
and damage from the polluters.

In Vellore Citizens Welfare Forums case158 the Apex Court held that
During the two decades from Stockholm to Rio Sustainable Development
has come to be accepted as a viable concept improve the quality of human
life while living within the carrying capacity of the supporting ecosystems... UNCED also recognised Inter-Generational Equity, Use and
Conservation of Natural Resources, Environmental Protection, the
Precautionary Principle, Polluter Pays principle, and Financial Assistance
to the developing countries as a part of sustainable governance... We have
no hesitation in holding that "Sustainable Development" as a balancing
concept between ecology and development has been accepted as a part of
the Customary International law though its salient features have yet to be
finalised by the International law Jurists. We are, however, of the view that
the precautionary Principle and The Polluter Pays principle are essential
features of Sustainable Development.
158

Vellore Citizens Welfare Forum v. Union of India, AIR 1996 SC 2715; (1996) 5 SCC 647.

248

6. 4. 4. Textile

Textile is one of the leading business in India which gives more foreign exchange
money from time immemorial. There are group of community involve in the textile
business, such as, formers, viewers, bleachers, dyers and traders both wholesale and
retailer. This particular business was also considered as a family business that is carried in
the form of Cottage industries. This part is not specifically covers extent application of
processes involved in the textile business and import/export measure rather it covers
available legislations and policies to curb the impact of textile industry related pollution
and its impact the environment.

In Sushila Saw Mill v. State of Orissa,159 the court observed that

The right to carry on trade or business envisaged under Article 19 (1) (g) is subject
to statutory regulation. When the statute prescribes total prohibition to continue to
operate even the existing saw mills situated within the prohibited area, the right to
carry on trade or business is subject to the provisions of the Act.
In Abhilas Textile v. Rajkot Municipal Corporation,160 in Tirupur Dyeing Factory
Owners Association v Noyyal River Ayacutdars Protection Association and Ors.161 The
Supreme Court has reiterated that mandate of the state to incorporate all the legal elements
of the concept of Sustainable Development. The Court also directed to create a separate
fund under the head of ecological cost. This is a contribution of the judiciary helped many
ways to safeguard the interest of present and future generations.

159

AIR 1995 SC 2484

AIR 1998 Guj. 51.
161
(2009) 9 SCC 737; AIR 2010 SC 3645.
160

249

6. 5. Principle and Doctrine

For a quite long time, to provide environmental remedy, the Constitutional courts
referred international law in our domestic legal system under Articles 32 and 226 of the
Constitution of India. The court also in catena of cases and affirmed these principles have
become part of Article 21 of the Constitution of India.162 The contribution led by the courts
to derive, adopt and apply a range of principles to guide the development of environmental
jurisprudence, as fundamental norms of environmental governance of the country.163 The
line between international and domestic law is sharply drawn by the contribution of
judiciary on development and environment controversies.164 Desai also stand on a similar
view on reliance of international conventions for provide effective environmental
remedy165 including international commercial and trade matters.166 Let us examine the
principles and doctrines evolved by the courts with a view to ensure environmental
sustainability in detail.

162

A. David Ambrose, International Environmental Law in India in Bima N. Patel (Edn.,) India and
International Law, (First Edition, Koninklijke Brill N. V. Printed, The Netherlands, 2005), pp 249-264 at
252; David Ambrose, Right to Development -Vs- Right to Environment: Complementary or Contradictory
Principles of International Human Rights Law, in P. Nagabooshanam (Edn.,) Environmental Law Policy
and Perspectives, (1995), pp 153-161; Bhaskar Kumar Chakravarthy, Environmentalism: Indian
Constitution and Judiciary 48 JILI (2006), pp 99-105 at 104.
163
C. M. Jariwala, Environment and Justice, (A. P. H. Publishing Corporation, New Delhi, 2004), p. 179.
164
Edith Brown Weiss, The Emerging Structure of International Environmental Law, in Norman J. Vig
and Regina S. Axelord (Eds.,) The Global Environment Institutions, Law and Policy, (Earthscan,
London, 1999) pp 98-137 at 99.
165
Bharat H. Desai and Balraj Sidhu, On the Quest for Green Courts in India 3 Journal of Court
Innovation (2010), pp 79 - 110 at 81; Jaydeeosinh G. Vaghela, Judiciary of India and Implementation of
International Environmental Law: Some Remarks, in Bima N. Patel (Edn.,) India and International Law,
Koninklijke Brill N. V. Printed, (2005), pp 453-46.
166
V. G. Hegde, Indian Courts and International Law 23 Leiden Journal of International Law (2010),
pp 53-77 at 57.

250

6. 5. 1. Absolute Liability Doctrine

In India, the principle of absolute liability is not a part of traditional

environmental jurisprudence. The common law doctrine of strict liability, describe
who can initiate proceeding for want of damages.167 In Rylands v. Fletcher,168 the
Privy Council evolved a principle of strict liability to ensure remedy for the affected
persons in view of environmental degradation. There some exceptions were recognised
as a ground wherein the polluter might get relief from payment of damages to the
victim.169 Hughes argues that, failure to provide a generally accepted liability remarks
the weakness of the judicial system in providing remedy to the affected persons. The
doctrine of absolute liability was coined because the enterprise, carrying on the
hazardous activities alone had the resource to discover and guard against hazards or
dangers as compared to the victim.170

In Union Carbide Corporation of India v. Union of India,171 Bhopal accident,

the worst industrial disaster in human history. Without the basic law to provide a
remedy to affected people, the court could not make quick decisions relating to
compensation to the victims.172 The court has prominently evolved a doctrine called

167

David Hughes, Environmental Law, (Second Edition, Butterworths, London, 1992), p. 25.
(1868) LR 3 HL 330.
169
Exceptions to the Strict Liability Principle, a) consent of the plaintiff, express or implied;
b) contributory negligence; c) an act or default of the plaintiff led to the damage; d) an act of God,
Viz Major; e) act of third party and f) Statutory authority.
170
Supra note 163, p. 185; see gen. Vinod Shankar Mishra, Environmental Justice: The Absolute Liability
Principle, 30 Ban. L. J. (2001) pp 132-145.
171
(1989) 1 SCC 674.
172
See gen. Bharat H. Desai, The Bhopal Gas Leak Disaster Litigation: An Overview 3 Asian Y. B. Intl
L. (1993), pp 163-179 at 168.
168

251

Parens Patriae to the Mass Tort. In M. C. Metha v. Union of India,173 the Court held
that

we are of the view that an enterprise which is engaged in a

hazardous or inherently dangerous industry which poses a potential
threat to the health and safety of the persons working in the factory and
residing in the surrounding areas owes an absolute and non-delegable
duty to the community to ensure that no harm results to anyone on
account of hazardous or inherently dangerous nature of the activity
which it has undertaken. The enterprise must be absolutely liable to
compensate for such harm and it should be no answer to the enterprise
to say that it had taken all reasonable care and that the harm occurred
without any negligence on its part...
In M.C. Metha v. Kamal Nath and Others,174 the court held that

...pollution is a civil wrong. By its very nature, it is a tort committed against

the community as a whole. A person, therefore, who is guilty of causing
pollution, has to pay damages (compensation) for restoration of the
environment and ecology. He has also to pay damages to those who have
suffered loss on account of the act of the offender. The powers of this court are
not restricted and it can award damages in Public Interest Litigation or a Writ
Petition as has been held in a series of decisions. In addition to damages
aforesaid, the person guilty of causing pollution can also be held liable to pay
exemplary damages so that it may act as a deterrent for others not to cause
pollution in any manner
In Narmada Bacho Andolans case175 the Supreme Court once again
reemphasise the importance of international convention, such as ILO Convention. The
convention provided that where removal of this population is necessary as an
exceptional measure, they shall be provided with lands of quality at least equal to that

173

(1987) 1 SCC 395.

(2006) 6 SCC 213.
175
Narmada Bacho Andolan v. Union of India and Others, AIR 2000 SC 3751; (2000) 10 SCC 664.
174

252

of lands previously occupied by them, suitable to provide for their present needs and
future development.176.

Based on the convention the court held that the Tribal

Populations shall not be removed from their lands without their free consent from their
habitual territories except in accordance with national laws and regulations for reasons
relating to national security on in the interest of national economic development.
Holder describes that the remedy against environmental pollution is considered as
environmental compensation. This can be possible to claim within the sustainable
development discourse, particularly in terms of potential which exists for reconciling
development with environmental protection.177

In addition to the remedies what are claimable by the persons who are affected
in view of environmental pollution both under law of tort and Writs; the Parliament
enacted remedial laws, such as Public Liability Insurance Act, 1991178 and the Civil
Nuclear Liability Act, 2009.179 Ambrose suggested that besides the remedies available
in common law remedies, the use of criminal law provisions to tackle the
environmental problems and conserve the resources for the betterment of present and
future generations.180

176

Article 29 para. e, ILO Convention, (1989)107; 72 ILO Of. Bull. (1989) 59; 28 ILM 1382 (1989).
See gen. Richard Cowell, Stretching the Limits: Environmental Compensation, Creation and Sustainable
Development 22 Transactions of the British Geographers (1997), pp. 292-293.
178
Act No. 6 of 1991.
179
Act No. 38 of 2010.
180
David Ambrose, Green Crimes Need Red Signal, 23 The Year Book of Legal Studies (2000), pp 21-34
at 34.
177

253

6. 5. 2. Public Trust Doctrine

The traditional use of public trust doctrine rests common property like navigation,
comers and fishing only.181 The modern uses of the doctrine covers certain resources like
air, sea, waters and the forests have such a great importance to the people as a whole that it
would be wholly unjustified to make them a subject of private ownership.182 The said
resources being a gift of nature, they should be made freely available to everyone
irrespective of the status in life.

In M. C. Metha v. Kamalnath,183 the Supreme Court held that

public trust doctrine was founded to protect certain common properties
such as rivers, sea-shore, forests and air were held by the government in
trusteeship for the free and unimpeded use of general public.. These
resources being a gift of nature, have a great importance to the people as a
whole should be made freely available to everyone irrespective of the status
on life. The state is a trustee of all natural resources and also state has a
legal duty to protect them and that the resources were meant for public use
and could not be transferred to private ownership...

In M. I. Builders v. Radhey Shyam Sahu,184 in Rambabu v. Divisional Forest

Officer,185

and in Intellectual Forum v. State of A.P.186 in Andhra Pradesh State

181

A. David Ambrose, Public Trust Doctrine: The Basis of Environmental Law 2 KUJLS (2001), pp 39-48
at 42.

182
183

Supra note 174.

(1999) 6 SCC 464.
185
AIR 2002 Kant. 123.
186
(2006) 3 SCC 549.
184

254

Fihsermans case,187 and in Fomento Resorts and Hotels Ltd., v. Minguel Martins188 Court
held that
the public trust doctrine enjoins upon the government to protect the
resource for the enjoyment of the general public rather than to permit their
use for private ownership or commercial purposes. The doctrine puts an
implicit embargo on the right of the state to transfer public properties to
private party if such transfer affects public interest, mandates affirmative
state action for effective management of natural resources and empowers
the citizens to question ineffective management thereof The heart of
public trust doctrine is that it imposes limits and obligations upon
government agencies and their administrators on behalf of all the people
and especially future generations
In a recent and popular spectrum allocation case189 also the Supreme Court
categorically reiterated that Auctioning of natural resources and held that
A Duly published action conducted fairly and impartially is perhaps
the best discharging this burden and the methods like first come first
served when used for alienation of natural resources/public property are
likely to be misused by unscrupulous people who are only interested in
garnering maximum financial benefit and have no respect for the
constitutional ethos and values. While transferring the natural resources,
the state is duty bound to adopt the method of auction by giving wide
publicity so that all eligible persons can participate in the process190

Armin also describes that common property resources are the only wealth of Indian
citizens. The three types of restrictions on governmental authority are often thought to be
imposed by the public trust, First, the property subject to the trust must not only be used
for a public purpose, but it must be held available for the use by the general public;
Second, the property may not be sold, even for a fair cash equivalent; and third, the
property must be maintained for particular types of uses.
187

(2010) 3 ALD 300; Balachandra Bhikaji Nalwade v. Union of India and Others, 170 (2009) DLT 251,
para. 22; (2006) 6 SCC 371, para. 83.
188
(2009) 3 SCC 571 at paras. 52-55 and 65.
189
Centre for Public Interest Litigation v. Union of India, (2012) 3 SCC 1.
190
Para 96, ibid.

255

6. 5. 3. Inter Generational Equity

Intergenerational Equity is among the newest norms of international environmental

law, it can be best understood for sustainable economic development and resource
conservation. Inter Generational Equity maintain that the present generation has a moral
obligation to manage the earth in a manner that will not jeopardize the aesthetic and
economic welfare of the forthcoming generation. In State of Himachal Pradesh v. Ganesh
Wood Products,191 the court recognised the significance of Inter-Generational Equity and
held a governments approval is contrary to public interest involved in preserving forest
wealth, maintenance of environment and ecology and considerations of sustainable growth
and inter-Generational equity. In Dighi Koli Samaj Mumbai (Regd) v. Union of India, the
court reiterated the successful environmental policies require many things, the most vital
being the support of the common masses and that happens only if there is an ethical
commitment to environmental values.192 Dr. Meenakshi Bharath v. State of Karnataka193
After all, the present generation has no right to deplete all the existing forests and leave
nothing for the next generation.

191

AIR 1996 SC 149 at 163.

2009 (5) Bom. CR 97.
193
2012 (4) Kar LJ 248.
192

256

6. 5. 4. Precautionary Principle

Amongst the legal elements of the concept of Sustainable Development of

UNCED; the precautionary principle has laid down foundation for the contemporary
sustainability. The notion of precaution is stemmed with state practice by legislation and
application of domestic courts, as state practice.194 In A. P. Pollution Control Case,195 the
court reiterate the significance of the Precautionary Principle.

In Narmada Bacho

Andolans case, Chief Justice Anand and Justice Kirpal gave the following findings:196
The precautionary principle and the corresponding burden of proof on the
person who wants to change the status quo will ordinarily apply in a case of
polluting or other project or industry where the extent of damage likely to
be inflicted is not known. When there is a statutory uncertainty due to lack
of date or material about the extent of damage or pollution likely to be
caused then, in order to maintain ecological balance, the burden of proof
that the said balance will be maintained must necessarily be o the industry
or the unit which is likely to cause pollution.

In Vellore Citizens Welfare Forum v. Union of India,197 in Godavarman Thirumal

Pad v. Union of India,198 K. M. Chinnappa v. Union of India,199 in Noyyal River
Ayacutdars Associations case.200

194

See generally, B. C. Nirmal, From Velloe to Nayudu: The Customary Law Status of the Precautionary
Principle 30 Ban. L. J. (2001) pp 58-99 at 59.
195
A. P. Pollution Control Board v. M. V. Nayudu, (1999) 2 SCC 718; AIR 1999 SC 812.
196
Supra note 74, at paras 150-151.
197
Supra note 157.
198
Supra note 158.
199
Supra note 124.
200
Supra note 161.

257

6. 5. 5. Polluter Pays Principle

Polluter Pays Principle makes the polluter liable to pay the costs to remedy the
environmental harm caused. This principle is considered to be the most efficient way of
allocating costs of pollution prevention and control measures introduced by the public
authorities to encourage rationale uses scarce of environmental resources.

In Indian Council for Enviro Legal Action v. Union of India,201 compensation and
remedial action for loss suffered by citizenry due to pollution. In Research Foundation for
Science v. Union of India,202 compensation under polluter pays principle was granted. In
Deepak Nitrite Ltd., v. State of Gujarat,203 Compensation was awarded for mere violation
of norms/rule but only if there is damage to environment. In Vellore Citizens Welfare
Forums case,204 Polluter Pays Principles, a interpreted by the Supreme Court means that
the absolute liability to harm to the environment extends not only to compensate to the
victims of pollution, but also the cost of restoring the environmental degradation.
Remediation of the damage and environment is part of the process of Sustainable
Development and therefore polluter is liable not only to pay the cost to the individual users
but also to the cost of reversing the damaged ecology.205

201

(1996) 5 SCC 218.

(2005) 10 SCC 664.
203
2004 (6) ALT 7 (SC)
204
Supra note 158.
205
See Principle 16, Supra note 29; see gen. Nicolas de Sadeleer, Environmental Principles From Political
Slogans to Legal Rules, (Oxford University Press, Oxford, 2002), p. 53.
202

258

6. 6. Legal Status of the Sustainable Development in India

The various decisions of the WTO-DSB,206 International Court of Justice207 and

Arbitral Tribunals208 categorically reiterated that the legal elements of the concept of
Sustainable Development are a fundamental norm of environmental policy. However,
these precedents will not make any binding force in India. To recognize custom as a
source of international law it should satisfy the two prominent prerequisite, such as state
practice and opinio juris et necessitates. In India, with regard to the recognition and
application of the legal elements of the concept of Sustainable Development till today there
is no provision in the Constitution of India.209 To realise the legal status of the concept of
Sustainable Development; analyzing the contribution of the constitutional court is
immense and important.

With regard to the bindingness of the legal elements of the concept of Sustainable
Development; in catena of cases on environment and development controversies; legal
elements of the concept of Sustainable Development is widely applied by the
Constitutional Courts and reiterated that legal elements of the concept of Sustainable
Development is a fundamental governance of the state.210 In Soman v. Geologist211 and in

206

WT/DS135/135/R and Add. 1, adopted as modified by the Appellate Body Report, WT/DS135/AB/R;
WT/DS285,R, 10 November 2004; WT/DS2/AB/R, adopted 20 May 1996 and WT/DS371/AB/R 17 June
2011.
207
Gabcikovo-Nagymaros Project Case, (1997) ICJ Rep. 7.
208
Railway Belgium v. The Netherlands, ICGJ 373, PCA 2005, 24th May 2005.
209
See gen. Art. 48-A, Art. 51 (A) (g), Supra note 13 and Supra note 15.
210
(1995) II LLJ 768 SC; AIR 1997 SC 1203; (2004) 9 SCC 362; AIR 2005 Guj. 203; AIR 2006 SC 2038,
(2006) 3 SCC 549; (2006) 3 SCC 434; AIR 2001 Bom. 318; 2008 (106) DRJ 27; (2002) 10 SCC 606; AIR
2005 AP, 155; 2009 (9) UJ SC 4402; AIR 2004 SC 4016; AIR 2006 SC 2893 and Hegde, Indian Courts
and International Law 23 Leiden Journal of International Law (2010), pp 53-77 at 68.

259

Thilakan v. Circle Inspector of Police and Other,212 Kerala High Court made a direct link
with Article 21 of the Constitution of India and the concept of Sustainable Development.
Court held
that the right to have a pollution free environment, flowing from the rights under
Article 21 of the Constitution of India relating to the principle of customary
international law concerning Sustainable Development, which is now part of the
municipal law.

In Javed and others v. State of Haryana and others, and In Research Foundation
for Science, Technology and Natural Resource Policy v. Union of India and Ors213 the
court held that the provisions of MEAs relied upon by courts and effectuate the
fundamental rights guaranteed in the Constitution of India and those fundamental rights,
hence enforceable.214

In T.N. Godavarman Thirumulpad, v.Union of India and others, the court held that
the concept of Sustainable Development is permissible and is universally accepted
phenomenon.
Biodiversity valuations has important implications for decision making. Since all
value does not get reflected in markets, its valuation also raises methodological
problems regarding the kinds of value that are being captured by the particular
technique being used. This implies that biodiversity value for which a market exists
must be taken note of, while simultaneously making sure that the natural capital
inherent in biodiversity rich areas in preserved and values which are crucial for
some stakeholders but cannot be expressed in the market are reflected in societal
decision making

211

2004 (3) KLT 577 at para 15; Ashwani Chobisa v. Union of India and Ors, RLW (2005) 1 Raj 389 at
para. 24.
212
AIR 2008 Ker. 48 at para 17.
213
AIR 2007 SC (Supp) 852.
214
B. K. Sharma v. Union of India, AIR 2005 Guj. 203, at para. 42

260

In Tamil Nadu Pollution Control Board v.The State Human Rights Commission,215
the Madras High Court has highlighted the lacuna in terms of an appropriate regulatory
framework and held that
.there is an urgent need for enactment of a general resolution of various
regulatory agencies for regulation and speedy response in the event o accidents
threatening environment and deterrent punishment to those who endanger human
environment safety and health
In Paramjit Kaur v. State of Punjab,216 the court held that no statutory limitations
would prevent the people to approach the Supreme Court under Article 32 of the
Constitution of India. Relied on the same in Nayudu case, the court held that
Environmental concernsare in our view, of equal importance and
human rights. In fact both are to be traced to Article 21 which deals with
fundamental right to life and liberty. While environmental aspects concern
life, human rights aspects concern liberty.217

Hence, the concept of Sustainable Development helps to maintain equilibrium

between economic development and conservation of resources.218 This can be achieved
with the help of effective usage of technology.219 The concept of Sustainable Development
is recognized as a wider concept for dignified life for all without further destroying
recklessly the words finite resources.220 Justice Nagendra Singh remarks that

215

W.P. 2570 of 2000 and W.P. No. 9139 of 2000, Decided on 04.11.2004.
AIR 1999 SC 430 at 431-432.
217
AIR 1999 SC 812 at 825.
218
V. G. Hegde, Indian Courts and International Law 23 Leiden Journal of International Law (2010),
pp 53-77 at 68; See generally, Baidyanath Misra, Sustainable Development Problems and Challenges of
21st Century 19 IAASI Quarterly (2000), pp 57-77; Moumita Das and Padmini Singh, Sustainable
Development and Environmental Law: India-Australia Experience 45 IJIL (2005) pp 243-256.
219
Sobha. I, What Technology Did to Sustainable Development 7 ACE (J) (2004), pp 1-7 at 2; see gen.
Jariwala. C. M, Complex Enviro-Techno Science Issues: The Judicial Direction 42 JILI (2000), pp 2939.
220
Dr. S. A. K. Azad, Sustainable Development and Environment, Indian Bar Review (2001), pp 167-174
at 168.
216

261

 it would be correct to state that the right to environment in so far as it

relates directly to human existence and human survival is of the same
category and potency as the right to life and peace.221

In addition to the conservation of resources for achieving environmental sustainability,

the apex court has also given new directions to environmental justice222 on environmental
education,223 public awareness, green court.etc. Since environmental litigation are technical
in nature, the apex court realized that it requires assistance of scientific experts that can also
provide speedy and effective remedy against environmental pollution Green Benches were
created with a specific objectives.224

The 186th Report of the law Commission recommends

the setting up of Green Courts in India with its composition, power and procedure of the
court.225
Desai has described that as the volume of hard law and soft law grow as a guiding
principle of international law, the question of adjudication of disputes gains prominence.226
Arvind Jasrotia remarks Ecocentric perspective of Sustainable Development reconceptualises
ethical positions around a non-human centered attitude to the environment and see value
residing in ecosphere as a whole rather than in the human or individual entities, and that value
exist independently humans.227

Awareness of the major challenges emerging both with regard to the development and the
environment has made possible a consensus on the concept of Sustainable Development.
221

Nagendra Singh, Right to Environment and Sustainable Development as a Principle of International

Law29 JILI (1967) pp 289-312, at 291.
222
Sunil Ambwani, Justice, Environmental Justice: Scope and Access AIR (J) (2007), pp 49-56; See gen.
Shailendra Kumar Gupta, Concept of Environmental Justice 35& 36 Ban. L. J. (2006-07), pp 169-193.
223
UNESCO, World Conference on Education for Sustainable Development, Bonn, Mar 13- April 2, (2009),
224
Supra note 158;
225
Law Commission of India, 186th Report on Proposal to Constitute Environmental Courts, September
2003, available at http://lawcommissionofIndia.nic.in/reports/186th%20report.pdf,
last visited on
20.12.2012.
226
Bharat H. Desai, Environmental Law: Some Reflections 23 Indian Bar Rev. (1996), pp 191-202.
227
Supra note 72, at 33.

262

6. 7. Conclusion

From the detailed analysis it is concluded that the Constitution of India in its
directives imposes duty to the state and citizens to make measure on conservation of
resources towards environmental sustainability. Infact, there are legislative and policy
measures on effective conservation of resources at different level the bindingenss of the
concept as well as ineffectiveness of the institutions that ahs remarkably created a chaos in
harmonsiing developmental and environmental controversies. Realising the mandate for
achieving environmental sustainability in catena of cases the constitutional courts relied
the soft law and transform the status of concept of Sustainable Development and
remarkably accepted as part of our Municipal law. Critics argued that the courts while
handling issues relating to environmental degradation, they generally apply the principles
of Sustainable Development and administrative justice. Ignoring, the critics, it is need of
the hour to make effective coordination among the existing institutions and broader
understanding to achieve environmentally sustainable policies along with global trade
targets.
*****

263