003 - Environmental Protection and Sustainable Development - Exploring The Dynamics of Ethics and Law

30 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol.
49 : 1
ENVIRONMENTA L PROTECTION AND SUSTAINABLE

DEVELOPMENT : EXPLORING THE DYNAMICS
OF ETHICS AND LAW
Arvind Jasrotia*
I Introduction
THE PRESENT day consensus reflects three foundational aspirations.

First, that human beings should be able to enjoy a decent quality of life,
second, that humanity should become capable of respecting the finiteness
of the biosphere, and third, that neither the aspiration for good life, nor
the recognition of biophysical limits should preclude the search for
greater justice in the world. In a planetary system of finite resources,
human activities motivated by an attitude of rampant consumerism and
unsustainable patterns of production and consumption have never been
so inhuman and callous towards environment as in the modern era of
scientific and technological innovations. Man’s greed attacks nature,
environment and ecology and wounded nature backlashes on the human
future. 1 Environment has clearly emerged as one of the big issues,
perhaps the biggest contemporary issue we face. During the past few
decades numerous incredible and devastating events have focused the
domestic and global attention to the impending danger of environmental
devastation, the depletion of resources, and a massive extinction of
species. Issues such as climate change, trends in global warming,
ozone depletion, acid rain, deforestation, desertification, toxic wastes
and loss of biological diversity have resulted in increasing global
awareness of the problems facing the planet earth. An unprecedented
rise in human population has overburdened ecological and social systems.
The foundations of global security are threatened. The global concern
has been aptly echoed in the preambular assertion made at the Earth
Summit in the year 1992:2
* B.Sc., LL.M., PhD; Reader, Department of Law, University of Jammu. The

paper is an update on the presentation made at 2nd International Conference on
International Law organized by Indian Society of International Law at New Delhi.
1. V.R. Krishna Iyer, The Dialectics and Dynamics of Human Rights in India 7
(1999).
2. Preamble, Para 1.1, Report of The United Nations Conference On Environment
and Development (UNCED) AGENDA-21, 1992.
www.ili.ac.in © The Indian Law Institute

2007 ] ENVIRONMENTA L PROTECTION & SUSTAINABLE DEVELOPMEN T 31
Humanity stands at a defining moment in history. We are

confronted with a perpetuation of disparities between and within
nations, a worsening of poverty, hunger, ill health and illiteracy,
and the continuing deterioration of the ecosystems on which
we depend for our well-being.
Earth’s resources are finite and there are ecological limits to growth
which, unless we alter our ways, will sooner rather than later be
exhausted. Environmental crisis involves social, political and economic
aspects, but it also poses a philosophical problem. The most vital task
is to build an environmental ethics that constructs an adequate theory
of intrinsic value of nature as a whole. The concept of sustainable
development was placed on the international agenda with the release of
the report Our Common Future by World Commission on Environment
and Development (Brundtland Report) in 1987 where it was envisaged
that ‘Human survival and well-being depends on success in elevating
sustainable development to a global ethic.’3 The paper seeks to explore
the ethical dimensions of sustainable development and its journey from
rhetorical to operative consensus and offers insight as to how
environmental ethics can be converged into sustainable development
paradigm through the adoption of an ecological consciousness based
on shared values and obligations.
II Environmental ethics
Ethical dilemmas abound in environmental politics. Environmental

ethics, by examining questions about how humans ought to think about
and act towards nature, provides a link between theory and practice.
Environmentalists fear that without a belief in ‘a whole that is greater
than us’, we have no reason to value nature for itself. How can a
purely secular ethic, their argument goes, does justice to our concern
for the preservation of things for their own sake rather then for the
pleasure they give us? 4
A central precept of green thinking is the belief that the current
ecological crisis is caused by human arrogance towards the natural
world which legitimates its exploitation in order to satisfy human
interests. Human arrogance towards nature is rooted in anthropocentrism:
a way of thinking that regards humans as the source of all value and
3. WCED, Our Common Future 308 (1987).

4. Proceedin g from the sole basis of human interests, we can show the
undesirability of environmental degradation only to an extent, we cannot show it
to be undesirable in general, see, for example, Martin Schonfeld, “Justifying Value
in Nature” The Electronic Journal of Analytical Philosophy 3 (Spring 1995).

32 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 49 : 1
that human needs and interests are of highest, perhaps exclusive,

significance — humans are placed at the centre of the universe,
independent of nature, and endowed with unique values. 5
Anthropocentrism regards that only humans have intrinsic value, a claim
usually based on their capacity either to experience pleasure and pain
or to reason; and furthermore, that only humans have interests. In
addition to human beings, does nature (or some parts of nature) also
have intrinsic value? That is the central theoretical question in
environmental ethics. Indeed, how to discover intrinsic value in nature
is the defining problem for environmental ethics. For, if no intrinsic
value can be attributed to nature, then environmental ethics is but a
particular application of human-to-human ethics. In other words, if
nature lacks intrinsic value, then non-anthropocentric environmental
ethics is ruled out. 6 On this account, environmentalis m is just an
expression of enlightened self-interest. Contrary to this view is the
biocentric or ecocentric vision. Ecocentrism rejects the human chauvinism
of anthropocentrism and argues that all of nature has intrinsic value. 7
Ecocentrics object to human chauvinism, not to humans; they want
human and human culture to blossom and flourish, just as they want
other species to. Granting intrinsic value to nature would make a huge
practical difference. The burden of proof would be shifted from the
conservationists to those who, pursuing other values, are intentionally
or unintentionally, knowingly or inadvertently destroying nature. This
would amount to a revolution in the way we treat non-human world
that is comparable to the difference for humans between a legal system
that operates on a presumption of innocence until guilt is proved beyond
reasonable doubt and one that operates on a presumption of guilt until
innocence is proved beyond reasonable doubt. The endeavour of
environmental ethics remains fundamentally incomplete without the
clarification of intrinsic value. After all, the initial philosophical problem
sparked by the environmental crisis concerns this question directly:
something is wrong with the destruction of nature, something valuable
is destroyed, how can we make theoretical sense of the value apparently
contained in nature? Hence, the question of nature’s value is not
peripheral or supplementary to the task of environmental ethics. It lies
5. Carter, The Politics of Sustainable Development 15 (2001); see also, Principle

1 of the Rio Declaration: Human beings are at the center of concern for sustainable
development….
6. Richard Routley and Val Routley, “Human Chauvinism and
Environmental Ethics.” in Don Mannison et. al., (eds.), Environmental Philosophy
(1980). See also, Rolson, Holmes, III Conserving Natural Value (1994).
7. Supra note 5. See also, O’Neil, Ecology, Policy and Practice 9 (1993) and R.
Eckersley, Environmentalism and Political Theory 56-57 (1992).

200 7 ] ENVIRONMENTA L PROTECTION & SUSTAINABLE DEVELOPMEN T 33
at the very heart of the philosophica l endeavour. 8 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. Since effective policies
require that the civil society be sensitized so to speak, the question is:
what kind of ethic will suffice for them? First, what are the implications
of showing that nature, or parts of nature, e.g., animals or plants,
possess intrinsic or inherent value? Greens hope it will encourage us to
change our behaviour towards nature. Holistic arguments attempt to
derive ‘ought’ from ‘is’, i.e. they shift from a description of the way
nature works (how it ‘is’) to a prescription for an ethical system (how
we ‘ought’ to behave). Ecocentric perspectives reconceptualise ethical
positions around a non-human centered attitude to the environment and
see value residing in the ecosphere as a whole rather than in the human
or individual entities, and that value exist independently of humans.
Secondly, some writers argue that if, say, animals do have intrinsic or
inherent value, then they also have interests (perhaps living a full life?)
or, stronger still, that they posses certain rights (a right to life?), and
that possession of interests or rights create obligations or duties
concerning the way we should behave towards animals. 9
8. Callicot recounts the experience of Edwin Pister, a biologist trying hard to save
from extinction several species of desert fishes. His colleagues often asked
Pister— what good is it anyway? The question presupposed that a species has no
claim to existence unless its member has some utility. Finally, Pister found a way
out to put the concept of intrinsic value across clearly. To the question, what
good is it? He replied, what good are you? The answer forces the questioner to
confront that fact that he regards his own total value to exceed his instrumental
value i.e., even if people are not instrumentally valuable to the society, they
nevertheless believe that they are still entitled to life, liberty and pursuit of
happiness. Human dignity and respect it commands—human ethical entitlement—
is grounded ultimately in our claim to possess intrinsic value. As quoted in J.B
Callicot, “Intrinsic Value in Nature:
A Metaethical Analysis”, The Electronic Journal of Analytical Philosophy 3 (Spring
1995).
9. See, Peter Singer, In Defence of Animals 1 (1985); and id., Practical Ethics
(1979), intrinsic value and the ‘moral considerability’ of animals also provides
arguments for international attempts against cruelty to animals and protection
of endangered species. International community has not truly embraced this
alternative vision of the purposes of environmental protection, but has at most
sought to ensure that ecological concerns are accommodated and given weight within
a broader process
of balancing and value judgment, which remains essentially anthropocentric.
See, Universal Declaration of the Rights of Animals, proclaimed on 15 Oct 1978
by the International League of Animal Rights. Its preamble recognizes that ‘All
animals have rights’; Art. 1 provides that ‘All animals are born with an equal
claim on life and the same rights to existence’; Art. 2 that ‘Man as an animal
species shall not arrogate to himself the rights to exterminate or inhumanly
exploit other animals’; Art. 3 that ‘All animals shall have the right to the
attention, care and protection of man’; texts in Allen, 28 NY Law School LR 414-5
(1983).

The Deep Ecology championed by the Norwegian Arne Naess and

others is a modern ecological version of traditional mysticism. It
promises self-realization through communion with nature understood
as a seamless whole.10 The deep ecology perspective is informed by
the idea of symbiosis: that every entity has value because it is needed
by at least one other entity. It intuits for a closer identification of the
human self with nature that could provide a rationale for nurturing
higher ecological consciousness. By seeing ourselves as part of nature
and by identifying more closely with it, to the extent that the other
(nature) becomes part of our self, a self realization dawns upon which
we can develop obligations to non-human nature. Only by changing the
way we perceive and think about nature can we overcome the current
ecological crisis. The continuity of self and nature means that, if the
individual self is intrinsically valuable, then nature must also be
intrinsically valuable. 11
Eastern mysticism
A good environmental sense has been one of the fundamental features

of India’s ancient philosophy. The civilization of India has grown up in
close association with nature. There has always been a compassionate
concern for every form of life in the Indian mind. This concern is
projected through the doctrine of dharma. The Hindu rishis of the
vedic era perceived the value of maintaining a harmonious relationship
between the needs of man and spectacular diversity of the universe. To
them, nature was not only the mother that sustained their life; it was
the abode of divinity. Sanctity of life to them included not only the
efforts to seek salvation, but to seek it by developing a sacred attitude
towards nature. Man, in Hindu culture, was instructed to maintain
harmony with nature and to show reverence to the presence of divinity
in nature. An analogous interpretation of holistic perception is given in
the traditional system of Advaita Vedanta in India, as the acme of
spiritual realization, in which the entire physical world appears identical
with oneself and Brahman. If, as the cosmology of the Upanishads
tells us, everything has come out of Brahman and is non-different
from Brahman, and if Brahman has entered into all things as it has
entered into all human beings, and has stayed there as the antrayamin
10. Arne Naess, “The Shallow and the Deep, Long Range Ecology Movement,”
Inquiry, vol.16, 95-100 (1973); see also, id., Ecology, Community and Lifestyle 29
(1973); Devall & Sessions, Living as if Nature Mattered 70 (1985).
11. The question how do we know that intrinsic value exists? is similar to the
question how do we know that consciousnes s exists? We experienc e both
consciousness and intrinsic value introspectively and irrefutably; supra note 8 at 2.

of all, then it will be no wonder that all this should verily be Brahman.
This is the highest knowledge. This is the sumnum bonum for man to
be achieved as a psychologica l and epistemologica l process of
apprehension of reality by degrees and by stages. The cosmic vision of
earth is based on the fundamental concept of Vasudev Kutumbakam
(All indeed is Vasudeva, the eternal reality). The way forward will
require a turn towards restoration and renewal. Vedic profundity
reaffirms the importance of justice, prudence, humility and reverence
for life and nature. To live within such a holistic relationship requires
our rediscovering the spiritual connection that unites us to the land and
that nourishes our souls as well as our bodies. 12 The affirmation of the
‘intrinsic worth’ and something like ‘rights’ of (or duties towards)
each individual person and all animal and plant species and in some
ways nature and ecosystems carries the correlate of recognizing our
own limits in claiming the fruits of the earth and in managing and
manipulating nature.13
Thus, the most radical approaches adopt a holistic analysis of the
human-nature relationship and tend to develop a non-anthropocentric
or ecocentric ethic that draws our attention to the importance of
developing a higher ecological consciousness which encourages us to
adopt holistic attitude towards nature. These perspectives has also
outlined a set of principles that is broad and undogmatic enough to
function as a rallying point for groups of widely divergent views on the
causes of the ecological crisis. There is a quest for an ethical code of
conduct based on the existence of intrinsic value in nature and the
development of an ethics based on a changed ecological consciousness
or ‘state of being’.
III Sustainable development: The convergence paradigm
One of the distinguishing features of holism is the view that humans

are not necessarily seated at the top of the ethical hierarchy. Holistic
arguments that draw attention to the interdependence of ecosystems
have forced philosophers to reappraise the human-nature relationship
and to think seriously about the duties one owes to the natural world.
However, an ideology also needs a coherent political dimension, including
a strategy for political change and a policy programme. Ecocentrics
have been criticized for being more concerned with getting the
12. A.C. Bose, Hymns from the Vedas 360 (1966); id., The Complete Works of
Swami Vivekananda, Vol. XI, 66 (1968). See also, Arvind Jasrotia, “Towards Eco-
Harmony: Building Upon Vedic Profundity” 9MDU Law Journal 325-334 (2004).
13. Rohit Mehta, The Call of the Upanishads, 10 (1970). See also, Annie Besant,
The Wisdom of the Upanishads (1968).

philosophy right, for example, elevating the anthropocentric-ecocentric

debate into a litmus test for greenness, rather than developing practical
political programme for change. 14 Consequently, as environmental
politics has become more mainstream, so environmental activism has
become increasingly reconciled to reformist strategies, which work
within the legislative process and the boundaries of civil society. How
should one assess this development? Not surprisingly, since the late
1980s, sustainable developmen t has become the dominant policy
discourse, not just for governments, international organizations and
businesses, but also for environmental movement itself. Even the 1992
Rio Declaration of the UN Conference on Environment and Development
refers to the ‘further development of international law in the field of
sustainable development’. The UN Environment Programme adopted a
more nuanced approach, where 1997 Nairobi Declaration refers to
‘international environmental law aiming at sustainable development’.15
According to the Brundtland Report, sustainable development is
the developm ent that meets the needs of the present without
compromising the ability of future generations to meet their own needs.16
This sets out two fundamental principles of intergenerationa l and
intragenerational equity and contains the two key concepts of needs
and limits:
a. The concept of needs, in particular, the essential needs of the
world’s poor to which overriding priority should be given.
b. The idea of limitations imposed by the state of technology and
social organization on the environment’s ability to meet present
and future needs.
The definition was vague, but it clearly captured two fundamental
issues, the problem of environmental degradation that so commonly
accompanies economic growth, and yet the need for such growth to
alleviate poverty.
Since 1987, sustainable development has rapidly become part of
popular language, however, there are substantial controversies as to
how to translate it into practice and develop standards and indicators to
assess whether it is being achieved. It has been suggested that the core
of mainstream sustainability thinking has become the idea of three
dimensions: environmental, social and economic sustainability. This can
be structurally conceived of as having the following structures:
14. Norton, Bryan, Toward Unity Among Environmentalists (1991).

15. P.Birnie and Boyle, International Environmental Law 2 (2002).
16. Supra note 3 at 43 [Emphasis added].

Figure: Three Visual

Representations of Sustainable
Development–Pillars, Circles,
Interlocking circles
A. Pillars
The three pillars
of sustainable development
http/www.vda.de/en/service/jahresbericht/
auto2002/auto+umwelt/u_3html
B. Concentric Circles
http/www.sustainablecampus.cor nell.edu/
sustainability-intro.html
C. Overlapping Circles
Economic Social
Economic Social Economic Social
Environment
Environment
Environment
The Three pillars of sustainable development, from left to right, the

theory, the reality, and the change needed to better balance the model.
http://www.incn.org/programme/
These have been drawn in a variety of ways, as pillars or concentric

circles (See, Figures A&B). The IUCN Programme 2005-8, adopted in
2005, used the interlocking circles model to demonstrate that the three
objectives need to be better integrated, with action to redress the balance
between dimensions of sustainability (See, Figure C).

The sheer proliferation of definitions of sustainable development is

evidence of its contestability. As one author has put it thus: “Sustainable
development is a metafix that will unite everybody from the profit-
minded industrialist and risk-minimizing subsistence farmer to the equity-
seeking social worker, the pollution-concerned, the growth-maximizing
policy maker, the goal-oriented bureaucrat, and, therefore, the vote-
counting politician.” 17 Richardson describes it as political fudge that
seeks to bridge the unbridgeable gap between the anthropocentric and
biocentric approaches to politics. 18 There subsist substantial
controversies as to how to translate it into practice and develop standards
and indicators to assess whether it is being achieved. There has emerged
a considerable amount of literature in which sustainable development
has been variously construed – as a pattern of transformation that
optimizes socio-economic benefits in the present without jeopardizing
the potential for similar benefits in the future; as a process of
developmen t that emphasizes intergenerational , interspecies , and
intergroup equity; as an economic development that is complimentary
to environment and society; as an improvement in current living standards
without jeopardizing future living conditions; and as a process of
ensuring environmental services on a very long term basis.19
The common among these interpretations is the multidimensional
nature of sustainable development. It has been increasingly recognized
that a comprehensive approach to sustainable development should
encompass environmental sustainability (requiring development to be
based on biotic capacity and minimal nonrenewable resources); economic
sustainability (implying the impossibility of never-ending economic
achievements based on natural resources and the need for incorporating
environmenta l costs into consumer prices); social sustainability
(highlighting the need for citizen’s participation in environmental
governance); and cultural sustainability (emphasizing changes based
on core cultural values and the acceptance of cultural differences).20
The World Commission argued that although interpretations of
sustainability will vary between countries, these interpretations ‘must
17. S. Lele, “Sustainable Development: A Critical Review” World Development

613 (1991).
18. Dick Richardson, “The Politics of Sustainable Development” in Baker et
al. (ed.), The Politics of Sustainable Development: Theory, Policy and Practice
within the European Union 43 (1997). See also, Principle 1 of Rio Declaration:
Human beings are at the center of concern for sustainable development....
19. C.J. Barrow, “Sustainable Development: Concept, Value and Practice,” 17
Third World Planning Review 369-386 (1995).
20. M.Shamsul Haque, “The Fate of Sustainable Development under Neo-Liberal
Regimes in Developing Countries” 21 International Political Science Review 197-218
(1999).

share certain general features and must flow from a consensus on the
basic concept of sustainable development and on a broad strategic
framework for achieving it.’ 21
With so much ambiguity surrounding the meaning of sustainable
development, there have been several attempts to construct typologies
distinguishing different ‘versions’ of sustainable development. Most
typologies identify weak and strong forms of sustainable development,
with some normatively outlining a transition from weaker to stronger
versions. O’Riordan provides an illustrative typology, which distinguishes
between levels of sustainability according to the way human, and
environment resources are valued. As is evident from the corresponding
table, currently most countries are only starting to move into the mode
of very weak sustainability and, at present, the modest aim must be to
avoid obvious cases of non-sustainability . 22 Finally very strong
sustainability equates with radical forms of ecologism such as deep
ecology, and is characterized by a steady-state economy, local social,
political and economic self-reliance and a redistribution of property
through burden-sharing.
This typology of sustainability finds acceptance amongst most green
parties who are firmly committed to the principles of sustainable
development. Indeed, an environmental ethic might also draw on a
range of anthropocentric arguments about how humans should treat
other humans, such as the need for intergenerational justice and the
obligations we owe to future generations. Such explicitly anthropocentric
debates are often excluded from green political theory, but with the
increasing importance of the sustainable development discourse in public
policy they have gained in significance. For example, Norton suggests
convergence of anthropocentric and non anthropocentric environmental
ethics. According to him, both prescribe the same personal practices
and public policies if one takes human interests to be sufficiently broad
and long. Nature serves us in more ways than as a pool of raw
materials and a dump for wastes. It provides priceless ecological
services. And, undefiled nature is a source of aesthetic gratification
and religious inspiration. When the interests of future generations (as
well as of present) and the ecological services and psycho-spiritual
resources afforded by nature are taken into account, respect for human
beings (or for human interests) is quite enough to support nature
protection. 23
21. Supra note 3 at 43.

22. O’ Riordan et al., Politics of Climate Change (1996), as quoted in Carter,
supra note 5 at 200-01.
23. Norton Bryan, “Epistemology and Environmental Value” 75Monist 208-26.
(1992).

40
Table: A Possible Map of the Sustainable Transition
Policy Economy Society Discourse
JOURNAL OF THE INDIAN LAW INSTITUTE

Stage1 Lip service to Minor tinkering with Dim awareness and Corporatist discussion
Very week policy integration economic instruments little media coverage groups; consultation
sustainability exercise
Stage 2 Formal policy integration Substantial restructuring Wider public education Round tables; stakeholders
Weak and deliverable targets of microeconomic for future visions groups; parliamentary
sustainability incentives surveillance
Stage 3 Binding policy integration Full valuations of the Curriculum integration; Community involvement;
Strong and strong international cost of living; ‘green’ local initiatives as part of twinning of initiatives in
sustainability agreements accounts alongside community growth the developed and
national accounts developing world
Stage 4 Strong international Formal shift to Comprehensive cultural Community-led

Very strong conventions; national sustainable economic shift coupled to technological initiatives become
sustainability duties of care; statutory accounting both innovation and new the norm
and cultural support nationally and community structures
[Vol. 49 : 1
internationally

2007 ] ENVIRONMENTA L PROTECTION & SUSTAINAB LE DEVELOPMEN T 41
Four recurring elements appear to comprise the legal elements of

the concept of sustainable development, as reflected in the international
agreements:24
1. The need to preserve natural resources for the benefit of
future generations (the principle of intergenerational equity);
2. The aim of exploiting natural resources in a manner which is
sustainable, or prudent, or rational, or wise or appropriate
(the principle of sustainable use);
3. The equitable use of natural resources, which implies that use
by one state must take into account of the needs of other
states (the principle of intragenerational equity); and
4. The need to ensure that environmental considerations are
integrated into economic and other developmen t plans,
programmes and projects, and that development needs are
taken into account in applying environmental objectives (the
principle of integration).
Global environmenta l problems pose major challenges to the
achievement of sustainable development since they require international
solutions. The United Nations Conference on the Human Environment,
held at Stockholm in the year 1972 may rightly be called the magna
carta of environment, as this was the first major attempt to solve the
global problems of conservation and regulation of human environment
at the international level.25 Subsequently, Rio Declaration consisted of
27 principles, which guide the behaviour of nations towards sustainable
development. This declaration, while reaffirming Stockholm Declaration
sought to build upon it, with goal of establishing a new and equitable
global partnership through the creation of new levels of co-operation
among states, key sectors of societies and people. The Rio Declaration,
recognizing the integral and interdependent nature of the earth, aimed
at working towards international agreements, which respect the interests
of all and protect the integrity of the global environmenta l and
developmental system. 26
Some of the environmenta l principles enshrine d in the Rio
Declaration, are very significant from the perspective of sustainable
24. See generally, Phillip Sands, Principles of International Environmental Law

231-306 (1995); and P.Birnie and Boyle, International Environmental Law 70-84
(2002).
25. See, Stockholm Declaration (1972); see also, Shon Louis, “The Stockholm
Declaration on the Human Environment” 14 Harvard International Law Journal 423
(1973).
26. UN Chronicle, Sep. 1992 at 62.

development. Principle 1 states thus: “Human beings are at the center

of concern for sustainable development” and that they “are entitled to a
healthy and productive life in harmony with nature.” The principle of
state responsibility is reiterated in principle 2, which is based on the
Roman maxim, sic utero tuo et alienum non laedas, which means ‘do
not behave in a way that hurts your neighbour’. Arguably this norm
has risen to a jus cogens status.27 Principle 3 (right to development)
and principle 4(integration of environmental protection and development)
form the core of the principle of sustainable development.
The Rio Declaration affirmed two principles that have become
mainstays in subsequent international instruments: the common but
differentiated responsibility principle and the precautionary principle.
These have been accepted as principles arguably reaching the status of
customary international law.28 However, the Johannesburg Summit
(WSSD, 2002) saw attempts to reduce the effectiveness of these
principles by some countries, rendering it of little utility for twenty-
first century environmental governance. One of the major goals of the
summit was to put sustainable development back on the global agenda.
In the context of WSSD, Secretary-General Kofi Annan had proposed
five key areas for particular focus, brought together under the acronym
WEHAB: Water, Energy, Health, Agriculture and Bio-diversity. The
commitment to sustainable development was reconfirmed, alongwith
the recognition of multilateral solution and the need for implementation.
It notes that there are three pillars of sustainable development and a
common resolve to eradicate poverty, change consumptio n and
production patterns and protect and manage the natural resource base.
These are recognized as the ‘overarching objectives of, and essential
requirements for, sustainable development. Peace, security, stability
and respect for human rights and fundamental freedoms are deemed to
be essential for achieving sustainable development . Economic
27. Supra note 19, see also, Arvind Jasrotia, “Sustainable Development as a
Principle of Jus Cogens” Souvenier and Conference Papers Vol. I 80-88 (2001).
28. The Rio Declaration, 1992: Principle 7 states that, “States shall cooperate in
a spirit of global partnership to conserve, protect and restore the health and integrity
of the Earth’s ecosystem. In view of the different contributions to global environmental
degradation, states have common but differentiated responsibilities. The
developed countrie s acknowledge the responsibilities that they bear in the
international pursuit
of sustainable development in view of the pressures their societies place on the
global environment and of the technologies and financial resources they command;”
whereas Principle 15 states that, “In order to protect the environment , the
precautionar y 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”.

development, social development and environmental protection are

accepted as interdependent and mutually reinforcing pillars.29 Overall,
the United Nations General Assembly was requested to adopt sustainable
development as a key element of the overarching framework for UN
activities.
An examination of international law, policy and ethics reveal that
the central basis of internationa l environmenta l law remains
anthropocentric, based on a mélange of self-interest and economic
advantage as well as some religious, aesthetic, and cultural practices
but nonetheless, the new non-anthropocentric developments reveal
growing recognition of intrinsic values, ecological interdependence,
and the need for a holistic approach. For example, in the year 1982, the
General Assembly of the United Nations adopted World Charter For
Nature, which proclaims the following principles of conservation by
which all human conduct affecting nature is to be guided and judged:30
1. Nature shall be respected and its essential processes shall
not be impaired.
2. The genetic viability on the Earth shall not be compromised;
the population levels of all life forms, wild and domesticated,
must be at least sufficient for their survival, and to this
end necessary habitat shall be safeguarded.
3. All areas of the Earth, both land and sea, shall be subject
to these principles of conservation; special protection shall
be given to unique areas, to representative samples of all
the different types of ecosystems and to the habitat of
rare or endangered species.
4. Ecosystems and organisms, as well as land, marine and
atmospheric resources that are utilized by man, shall be
managed to achieve and maintain optimum sustainable
productivity, but not in such a way as to endanger the
integrity of those other ecosystems or species with which
they coexist.
5. Nature shall be secured against degradation caused by
warfare or other hostile activities.
Also, the preamble to the 1992 Convention on Biological Diversity
evinces the complex mixture of objectives which characterizes much
29. Kevin R. Gray, “World Summit On Sustainable Development :

Accomplishments and New Directions” ICLQ, 256-268 (2003); see also, Anju Sharma
et al., Down To Earth 27 (2002); and Anil Aggrwal, Green Politics (GEN-1) 3
(1999).
30. World Charter For Nature, 1982.

of the contemporary international environmental law and illustrates what

can be referred to as a holistic approach to environmental protection, a
recognition of the interdependence of humanity and the entire natural
world, expressed most characteristically in the notion of the world as a
‘biosphere’, and implicit in both the 1992 Convention on Biological
Diversity and Climate Change. 31
The pursuit of sustainable development requires changes in the
domestic and international policies of every nation. It is clear that
sustainable development may have quite different implications for
different countries, depending on the level of development, availability
of resources, size of population, level of need satisfaction, and the
possibilities of substitution between natural and man-made capital. But
sadly, in a world that is polarized, when it comes to environmental
management, it is clear that the North’s indifference is becoming
genocidal for the South. The progress of some of the environmental
treaties has been dismal. The US has derailed the global treaty on
climate change by refusing to comply with the agreement to keep its
carbon emissions at 1990 levels. Recently, the 11 th Session of the
Conference of the Parties to the UN Framework Convention on Climate
Change (COP- 11), which also served as the 1st Meeting of the Parties
to the Kyoto Protocol (COP/MOP) was held at Montreal, Canada and
concluded the decade-long negotiations that launched the Kyoto Protocol
and opened a new round of talks to begin considering the future of the
international climate work. Key outcomes of the Montreal meetings
included decisions by the COP/MOP strengthening the clean development
mechanism, and a pair of decisions to consider next steps— one under
the protocol, launching negotiations toward new binding commitments
for Kyoto’s developed country parties; and another under the framework
convention, opening a non-binding “dialogue on long-term cooperative
action.” Some developing countries actively supported a new convention
process but the US, not a party to the protocol, insisted throughout the
negotiations that it opposed any new process under the convention.
For many governments, re-engaging the US remained high on the agenda.
Former President Bill Clinton in his unusual surprise address on the
final day of the negotiations emphasized the economic opportunities in
addressing global warming and urged that the same precautionary
approach driving the war on terrorism be applied to climate change.
31. See, Preamble to the 1992 Convention on Biological Diversity: Conscious of

the intrinsic value of biological diversity and of the ecological, social,
economic, scientific, educational, cultural, recreational and aesthetic value of
biological diversity and its components… Conscious also of the importance of
biological diversity for evolution and maintaining life-sustaining system of the
biosphere. See also, Gillespie, International Environmental Law, Politics and Ethic
176-8 (1997).

The COP, in a separate decision, also launched a two-year dialogue “to

analyze strategic approaches for long-term cooperative action to address
climate change.” The dialogue will focus on: sustainable development,
adaptation, technology, and market-based opportunities. It aims to
support implementation of existing commitments under the convention;
support “actions put forward voluntarily by developing countries”; and
“enable Parties to continue to develop effective and appropriate national
and international responses to climate change.” The engagement with
the US again became difficult but later on agreement was reached with
minor revisions, such as substituting market-based opportunities” for
“market-based mechanisms” and noting in the preamble that “there is a
diversity of approaches to address climate change.”32
Similarly, at Rio, developed countries agreed to spend 0.7% of
their GNP towards developmental assistance. Instead of increasing, the
figure has come down from 0.34 percent in 1992 to 0.22% now. Also,
agenda 21, the blueprint for change agreed upon at Rio, has to be like
the ten commandments. But countries like the US want to renege on
key agreements, pushing the process back to square one. Even at the
World Summit On Sustainable Development at Johannesburg, differences
soon emerged over the binding nature of instruments . The final
declaration on sustainable development underlined the importance of
multilateralism in solving global problems, but the US in particular,
opposed any firm commitments or deadlines, and made it clear that it
was not interested in the multilateral process, which it sees as an
obstacle in the way of world’s richest superpower. At WSSD, developing
countries succeeded in keeping the reference s to “common but
differentiated responsibilities” of rich and poor countries in the text,
but the US announced in the closing plenary session that this principle
does not infer any obligations under international law. This has been
one of the basis of the US opposition to ratify the Kyoto Protocol.
Developing countries were looking not only to reaffirm the principle
but also enlarge its ambit to be applicable to the context of finance.
Further, it was agreed to refer to a precautionary approach instead of a
precautionary principle. Although the differences between a principle
and approach may not be decipherable from a policy perspective, there
are wide disparities concerning its legal effect. A principle can be
likened to the general principles or even customary international law,
being sources of international law pursuant to article 38 of the Statute
32. The key decisions of the Conference included negotiating New Kyoto Targets.
As required under Art. 3.9 of the Kyoto Protocol, the COP/MOP initiated a process
to “consider further commitments” for Annex I (developed) countries for the
period beyond 2012, when the first round of Kyoto emission targets expire. Full
report available at www.unep.org .

of the International Court of Justice. An approach does not encapsulate

the same meaning for the purpose of interpreting international law,
rendering it a consideration for national decision makers to use but not
bind regulatory action.33 Overall, the summit was intended to ensure
balance among economic, social and environmenta l concern and
reinvigorate the global commitment to sustainable development. The
concept of sustainable development was enlarged to include broader
concerns about poverty, health and human rights. However, these
linkages are still far from complete as is evidenced by government’s
reluctance to apply the precautionary approach to health or proclaim an
international human right to a clean environment.
IV Towards sustainability: Environmental

odyssey in India
Almost every national government in the United Nations now has a

minister and a department tasked with policy on the environment, and
many regional and local governments have also developed this capacity.
Since 1992 the volume and quality of environmenta l legislation
(international, national and local) has expanded hugely, and international
agreements (such as the Kyoto Protocol) have not only raised the
profile of environmental change but also begun to drive global policy
change. Public awareness of environmenta l and social issues in
development are in many cases now well developed. Citizens in almost
all countries not only know the issues, but also tend to feel that the
quality of the environment is important both to their own well-being
and to the common good. The ‘greening’ of business has grown to be
a central issue in corporate social responsibilit y for many global
companies.
India also plays an important role in several significant international
initiatives concerned with the environment. It is a party to the key
multilateral agreements, and recognizes the interdependencies among,
and transboundary character of, several environmental problems. The
Indian Constitution is amongst the few in the world that contains
specific provisions on environmental protection. The directive principles
of state policy and the fundamental duties chapters expressly enunciate
the national commitment to protect and improve the environment.34
Judicial interpretation has strengthened the constitutional mandate.
33. Ibid.
34. See, Constitution of India: Art. 48-A: The State shall endeavour to
protect and improve the environment and to safeguard the forests and wild life of the
country, and Art.51-A (g): It shall be the duty of every citizen of India to
protect and improve the natural environment including forests, lakes, rivers and
wild life and to have compassion for living creatures.

Though part III of the Constitution does not contain any provision to
provide right to pollution free environment as a fundamental right, but
in view of the liberal interpretation given to article 21 coupled with
articles 48-A and 51-A(g), the Supreme Court interpreted the right to
life and personal liberty to include the right to a wholesome environment.
Hygienic environment is an integral part of the right to a healthy life. It
would be impossible to live with human dignity without a humane and
healthy environment. The courts laid stress on the duties of the state
and citizens combined in articles 47, 48-A and 51-A(g) of the
Constitution of India. It is recognized that maintaining a healthy
environment is not the state’s responsibility alone, but also that of
every citizen. It has been stressed that a spirit of partnership should be
realized throughout the spectrum of environmental management in the
country. While the state must galvanize its efforts, there should also be
recognition by each individual — natural or institutional , of its
responsibility towards maintaining and enhancing the quality of the
environment.
India employs a range of regulatory instruments to preserve and
protect its natural resources. Administrative agencies created under
environmental statutes are required to implement legislative mandates.
The present legislative framework is broadly contained in the umbrella,
Environment Protection Act, 1986; the Water (Prevention and Control
of Pollution) Act, 1974; the Water Cess Act, 1977; and the Air
(Prevention and Control of Pollution) Act, 1981. The law in respect of
management of forests and biodiversity is contained in the Indian Forest
Act, 1927; the Forest (Conservation) Act 1980; the Wild Life (Protection)
Act, 1972; and the Biodiversity Act, 2002. There are several other
enactments , which complemen t the provisions of these basic
enactments. 35 Recently promulgated National Environment Policy, 2006
is also intended to be a statement of India’s commitment in making a
positive contribution to international efforts. Environment has been
defined in holistic terms as, “comprising all entities, natural or man
made, external to oneself, and their interrelationships, which provide
value, now or perhaps in the future, to humankind. Environmental
concerns relate to their degradation through actions of humans. 36 This
policy has evolved from the recognition that only such development is
sustainable, which respects ecological constraints, and the imperatives
of justice and are to be realized through various strategic interventions
by different public authorities at central, state, and local government
35. See, for example, Environmental (Protection) Rules, 1986; Laws relating to
Hazardous Wastes, Eco-Labeling and Environment Impact Assessment Notifications,
to name a few.
36. National Environment Policy, 2006 available at www.envfor.nic.in

levels. They would also be the basis of diverse partnerships.

The development of environmental jurisprudence in India is largely
the story of judiciary responding to complaints of its citizens against
environmental degradation and administrative sloth.37 In order to reap
the benefits of substantive environmental rights, courts have opened a
path of processual justice, without enslaving themselves to procedural
compulsions. The judiciary has assumed a pro-active role of public
educator, policy maker, super-administrator and more generally, amicus
environment and on appropriate occasions sought inspiration from
international laws and principles to reinforce, strengthen and widen the
environmental discourse in India. The international concept of sustainable
development is one such international principle on which judiciary
especially the Supreme Court has recently relied upon to sustain the
growth of environmental jurisprudence. Many principles are found out
to emanate from the concept of sustainable development, for example,
the Supreme Court has found out that intergenerational equity, use and
conservation of natural resources, environmental protection, polluter
pays principle, precautionary principle, obligation to assist and co-
operate, eradication of poverty and financial assistance to the developing
countries are some of the principles that have emerged out from the
sustainable development concept. The Indian judiciary for strengthening
and supplementing the existing environmental legal regime has duly
called in to rely upon the aforesaid principle s of sustainable
development. 38 Some of the significant cases that contributed towards
the development of environmental jurisprudence and highlighting judicial
activism vis-a- vis environment protection are discussed as under:
Greening the law of public nuisance, the Supreme Court in Municipal
Council, Ratlam v. Vardichand39 identified the responsibilities of local
bodies towards the protection of the law of public nuisance in the Code
of Criminal Procedure as a potent instrument for enforcement of their
duties. V.R. Krishna Iyer J in this case observed:40
Decency and dignity are non-negotiable facets of human rights
and are a first charge on local self-governing bodies...(Similarly)
providing drainage systems-not pompous and attractive, but in
37. Shyam Divans and Armin Rosencranz, Environmental Law and Policy in
India 1 (2001); see, for example, how the court expanded Godavaraman case (AIR
1996 SC 1040) from a matter of ceasing illegal operations in one forest into a
reformation of the entire country’s forest policy.
38. P. Leelakrishnan, Environmental Law in India 248 (2005).
39. AIR 1980 SC 1622; see also, Govind Singh v. Shanti Swaroop, AIR 1979 SC
143; P.C. Cherian v. State of Kerla, 1981 Ker LT 113; Ram Baj Singh (Dr.) v.
Babulal, AIR 1982 ALL 285; State of MP. v. Kedia Leather & Liquor Ltd., (2003) 7
SCC 389.
40. Id. at 1629.

working condition and sufficient to meet the needs of the people

can not be evaded if the municipality is to justify its existence
In the above case the Supreme Court also rejected the plea of the
municipality of insufficiency of funds. The court pointed out that
“financial constraints cannot validly exonerate the municipality from
performing its statutory liability. …even the Human Rights under part
III of the Constitution have to be respected by the State regardless of
budgetary provisions”.41
In Rural Litigation and Entitlement Kendra Dehradun v. State of
UP 42 the apex court delicately poised the balance between environment
and development. Favouring ecological integrity against industrial
demands on forest resources, the court considered the hardship caused
to the lessees but thought that ‘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 to ecological balance.43 Workers
were to be rehabilitate d by employing them in the reclamation,
afforestation and soil conservation programmes in the area.
Treating the environmental problem within a right-duty discourse,
the court in Damodhar Rao v. S.O. Municipal Corporation, Hyderabad44
observed that the protection of environment is not only the duty of the
citizens but also the obligation of the state. The court further held
that: 45
Environmental law has succeeded in unshackling man’s right to
life and personal liberty from the clutches of common law
theory of individual ownership. There can be no reason that the
practice of violent extinguishment of life alone would be regarded
as violative of Article 21 of the Constitution. The slow poisoning
by the polluted atmosphere caused by environmental pollution
and spoliation should also be regarded as amounting to violation
of Article 21 of the Constitution.
In the development of jurisprudence of environmental discourse in
India, the courts have evolved new doctrines to cope with the menacing
problem of environmental pollution and degradation. The journey from
Stockhol m Conference to the Johannesbur g Summit led to the
recognition that all human beings are entitled to a healthy and productive
life in harmony with nature.
41. Ibid. [Emphasis added].

42. AIR 1985 SC 652; see also, Kinkri Devi v. State, AIR 1988 HP 4; Goa
Foundation v. Konkan Railway Corporation, AIR 1992 Bom 471.
43. Id. at 656.
44. AIR 1987 AP 170.
45. Id. at 181.

Precautionary principle and polluter pays principle
Precautionary principle was emphasized in principle 15 of the Rio

Declaration, 1992 as follows:
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.
The ‘precautionary principle’ in the context of the municipal law
means:
1. Environmenta l measures by the state government and the
statutory authorities 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 be used as a reason for
postponing measures to prevent environmental degradation.
3. The ‘onus of proof’ is on the actor or the developer /
industrialist to show that his action is environmentally benign.46
In A.P. Pollution Control Board v. Prof. M.V. Nayudu 47 the
Supreme Court referred to the formulation of the precautionary principle
and the new burden of proof. The court observed that the principle of
precaution involves the anticipation of environmental harm and taking
measures to avoid it or to choose the least environmentally harmful
activity. It is based on scientific uncertainty. Environmental protection
should not only aim at protecting health, property and economic interest
but also protect the environment for its own sake. Precautionary duties
must not only be triggered by the suspicion of concrete danger but also
46. Basically, precautionary principle is a rule of evidence and particularly it

deals with the burden of proof in environmental cases where burden as to the absence
of injurious effect of the actions proposed is placed on those who want to
change the status quo. Before 1972 at the international level, it was the concept of
assimilative capacity, which was in operation. According to this concept, the
environment, having assimilative process, absorbs itself the shock of pollution, but
beyond a certain limit the pollution may cause damage to the environment
requiring efforts to repair it. Thus, according to the assimilative capacity theory,
the role of law will begin only when the limit is crossed. But pollution cannot
wait for action to be postponed for investigation of its quality, concentration and
boundaries. So there was a shift from the principle of assimilative capacity to the
precautionary principle.
47. AIR 1999 SC 812; see also Narmada Bachao Andolan v. Union of India, AIR
2000 SC 378, where the apex court held that the doctrine has no applicability where
gains and losses to build a dam are predictable and certain.

be justified by concern or risk potential. The precautionary principle

suggest that where there is an identifiable risk of serious and irreversible
harm, including, for example, extinction of species, wide spread toxic
pollution, major threats to essential ecological processes, it may be
appropriate to place the burden of proof on the person or entity
proposing the activity that is potentially harmful to the environment.
The court further declared that the precautionary principle has
been accepted as part of the law of the land. It is almost an accepted
proposition of the law that the rules of customary international law
which are not contrary to the municipal law shall be deemed to have
been incorporated in the domestic law and shall be followed by the
courts of law.
The precautionary principle was directly applied by the Supreme
Court in M.C. Mehta v. Union of India 48 for protecting the Taj Mahal
from air pollution. Expert studies proved that emissions from coke/
coal-based industries in the Taj Trapezium Zone (TTZ) had damaging
effect on the Taj Mahal. The court observed, “The atmospheric pollution
in TTZ has to be eliminated at any cost. Not even one percent chance
can be taken when human life apart, the preservation of a prestigious
monument like the Taj is involved.” The court held that the industries,
identified by the pollution control board as potential polluters, had to
change over to natural gas as an industrial fuel and those who were not
in a position to obtain gas connections should stop functioning in TTZ.
Polluter pays principle means that the polluter should internalize the
case of pollution, control it at its source and pay for its affects,
including remedial or cleanup costs rather that enforcing other states
or future generations to bear such costs. Principle 16 of the Rio
Declaration provides that:
National authorities should endeavour to promote the
internalization of environmental costs and the use of economic
instruments, taking into account the approach that the polluter
should, in principle, bear the cost of pollution, with due regard
to the public interest and without distorting international trade
and investment.
The Indian Supreme Court has recognized these twin principles as
universal rules to be applied to domestic polluters as well. In Indian
Council for Enviro-Legal Action v. Union of India49 the court held the
respondents absolutely liable to compensate for the harm caused by
them to the villagers in the affected area, to the soil and to the
underground water and bound them to take all necessary measures to
48. (1997) 2 SCC 353.

49. AIR 1996 SC 1446.

remove the sludge and other pollutants lying in the affected area and
also to defray the cost of the remedial measures required to restore the
soil and the underground water resources.
The polluter pays principle as interpreted by the court means that
the absolute liability for harm to the environment extends not only to
compensate the victims of the pollution but also the cost of restoring
the environmental degradation.50
In S. Jagannath v. Union of India 51 the court stressed that there
must be an environmental impact assessment before permission is
granted to install commercial shrimp farms. The conceptual framework
of the assessment must be broad-based taking into consideration the
intergenerational equity and the compensation for those who are affected
and prejudiced.
Doctrine of public trust
In Span Motels case 52 the Supreme Court relied upon the doctrine
of public trust where the court laid down a frame of reference to guide
natural resource managers. The court observed that the area being
ecologically fragile and full of scenic beauty should not have been
permitted to be converted into private ownership and for commercial
gains. The court applied the doctrine of public trust in this case and
observed that the Indian legal system is based on English common law
and includes the public trust doctrine as part of its jurisprudence. The
state is the trustee of all natural resources, which are by nature meant
50. Vellore Citizens Welfare Forum v. Union of India AIR 1996 SC 2718 at 2721.
In this case the court relied upon the rule, which was laid down in Oleum Leakage
case (AIR 1987 SC 1086). According to this rule, ‘once the activity carried on
is hazardous or inherently dangerous, the person carrying on such activity is liable
to make good the loss caused to any other person by this activity irrespective of
the fact whether he took reasonable care while carrying on activity’.
51. AIR 1997 SC 811.
52. M.C. Mehta v. KamalNath, 1997 (1) SCC 388; The doctrine was founded on
the idea that government in trusteeship for the free and unimpeded use of the general
public held certain common properties such as rivers, seashores, forests and the
air. Under the Roman laws these resources were either owned by no one (res
nullius) or by everyone in common (res communious). Under the English common
law, however, the sovereign could own these resources but the ownership was
limited in nature. The Crown could not grant these properties to private owners
if the effect was to interfere with the public interests in navigation or fishing.
Resources that were suitable for these uses were deemed to be held in trust by the
Crown for the benefit
of the public. Joseph L. Sax, Professor of Law, University of Michigan is the
proponent of the modern public trust doctrine; see also the decision of US
Supreme Court in Illinois Central RR Company v. Illinois, 146 US 387 (1892) for
applicability
of this doctrine; see, Ramababu v. Divisional Forest Officer, AIR 2002 Kant 123.

for public use and enjoyment. Public at large is the beneficiary of

seashore, running waters, air, forests and ecologically fragile lands.
The state as a trustee is under a legal duty to protect the natural
resources. These resources meant for public use cannot be converted
into private ownership. The court quashed the leases and directed the
Himachal Pradesh Government to take over the area and restore it to its
original natural conditions. The court also held that the motels shall pay
compensation by way of cost for the restitution of the environment
and ecology of the area. The pollution caused by the various constructions
made by motels in the riverbed and the banks of the river Beas has to
be removed and reversed.
In another case, MI Builders v. Radheyesham Sahu 53 the Supreme
Court held that allowing an underground shopping complex to come up
below a public park violates the public trust doctrine. The court directed
the demolition of the complex and restitution of the park.
The absolute liability principle
The rule in Rylands v. Fletcher54 holds a person strictly liable

when he brings or accumulates on his land something likely to harm if
it escapes, and damage arises as a natural consequence of its escape.
But ‘strict’ liability is subject to a number of exceptions that considerably
reduce the scope of its operation. Exceptions that has been recognized
are (i) an act of God, (natural disasters such as an earthquake or
flood); (ii) the act of third party (e.g. sabotage); (iii) the plaintiff’s
own fault; (iv) the plaintiff’s consent; (v) the natural use of land by the
defendant (i.e. strict liability applies to non-natural use of land by the
defendant); and (vi) statutory authority.
In M.C. Mehta v. Union of India,55 popularly known as Oleum
Leakage case, the Supreme Court rejecting the rule of Rylands v.
Fletcher in situation involving hazardous industries observed:
Where an enterprise is engaged in a hazardous or inherently
dangerous activity and harm results to anyone on account of
accident in the operation of such hazardous or inherently
dangerous activity resulting, for example, in the escape of toxic
gas, the enterprise is strictly and absolutely liable to compensate
all those who are affected by the accident. Any such liability is
not subject to any of the exceptions which operate vis-a-vis the
tortious principle of strict liability under the rule in Rylands v.
Fletcher.
53. AIR 1999 SC 2468.

54. 1868 LR 3 HL 330.
55. AIR 1987 SC 1086.

Environmental awareness and education
Enhancing environmental awareness is essential to harmonize patterns

of individual behaviour with the requirement s of environmental
conservation. This would minimize the demands placed on the monitoring
and enforcement regimes; in fact, large-scale non-compliance would
simply overwhelm any feasible regulatory machinery. Awareness relates
to the general public, as well as specific sections, e.g. the youth,
adolescents , urban dwellers, industrial and construction workers,
municipal and other public employees, etc. Awareness involves not
only internalization of environmentally responsible behaviour, but also
enhanced understanding of the impacts of irresponsible actions, including
to public health, living conditions, sanitation, and livelihood prospects.
Environmental education is the principal means of enhancing such
awareness, both among the public at large, and among focused groups.
Such education may be formal, or informal, or a combination of both.
It may rely on educational institutions at different levels; the print,
electronic, or live media; and various other formal and informal settings.
The directives of the Supreme Court went to the extent of spreading
environmenta l awarenes s and literacy as well as imparting of
environmental education not only at school level, but at all levels,
including higher education in the formal system. 56
Freedom of information and the right to know
Access to environmental information is the principal means by

which environmentally conscious stakeholders may evaluate compliance
by the concerned parties with environmenta l standards, legal
requirements, and covenants. They would thereby be enabled to stimulate
necessar y enforcemen t actions, and through censure, motivate
compliance. Access to information is also necessary to ensure effective,
informed participatio n by potentially impacted public in various
consultation processes, such as for preparation of environmental impact
assessments , and environmen t managemen t plans of development
projects.
Public participatio n in environmenta l decision-making can be
meaningful and effective only if people have a right to know. This is
imperative in environmental matters because, for example, government
decisions to site dams and large projects may displace thousands of
people and deprive them of their life styles and livelihood. Right to
know strengthens participator y democrac y also as armed with
information on government programmes, citizens may influence decision-
56. M.C. Mehta v. Union of India, AIR 1999 SC 2468.

making through representations, lobbying and public debate. Public

access to government information enables citizens to exercise their
political options purposefully. A government that conceals its actions
and policies from the people who are affected by such actions and
policies cannot be judged by the people and cannot be held accountable
for its misdeeds. Moreover, governments in modern welfare states
exercise vast powers that affect economic interests and impinge on
citizen’s liberty. These powers are susceptible to misuse by the executive
for private gain. Thus, the right to be informed of public acts can help
check the abuse of executive power. Likewise, access to government
records, can better equip a public-spirited litigant, particularl y
environmental groups, to fight cases of environmental degradation and
clearly establish where does public interest lie.
This right to know is a basic democratic right.57 The Supreme
Court has derived this right from two constitutional articles of great
potential — the fundamental right to freedom of speech and expression
granted in article 19(1)(a) and the fundamental right to life and personal
liberty enshrined in article 21.
The enunciation of the right to know as forming part of article 21
bears close relationship with issues of health, life and livelihood flowing
from environmenta l degradatio n and ecological imbalance. In an
unreported judgment, 58 the Bombay High Court recognized that an
environmental group has a right to examine municipal permissions
granted to private builders. This case is of seminal importance in as
much as right to know has been recognized as a distinct and self-
contained right independent from the government’s claim to privilege
under section 123 of the Indian Evidence Act.
It would not be out of place to mention that both the Air Act and
the Water Act as amended in 1987 and 1988 respectively, obligate
pollution control boards to disclose relevant internal reports to a citizen
seeking to prosecute a polluter. These disclosure provisions are unique
feature of the Indian laws. They ought to bolster citizen actions and
may also help to discipline polluters who are able to forestall prosecutions
57. See the observation of Mathew J in State of UP v. Raj Narain, AIR 1975 SC
865: (1975) 4 SCC 428, “In a government of responsibility like ours where all
the agents of public must be responsible for their conduct, their can be but few
secrets. The people of this country have a right to know every public act,
everything that is done in a public way, by their public functionaries. They are
entitled to know the particulars of every public transaction in all its bearing. The
right to know which is derived from the concept of freedom of speech, though
not absolute, is a factor, which should make one wary when secrecy is claimed for
transactions which can, at any rate, have no repercussion on public security.” See
also, Peoples Union for Civil Liberties v. Union of India, AIR 2003 SC 2363.
58. Bombay Environmental Action Group v. Pune Cantonment Board,

by influencing board officials. Provisos to section 43 of Air Act and

section 44 of Water Act, however, allow a board to withhold any
report if it considers that disclosure would be against the ‘public
interest’. This qualificatio n to the right of information seems
unnecessary. It is difficult to imagine a situation where disclosure of
reports on pollution could harm the public.
The Environmenta l Impact Assessment Regulation of 1994, as
amended in 1997, confer a right on the members of the public to
access the ‘executive summary’ of a proposal prepared by the project
proponent. This access is meant to enable citizens to participate at a
public hearing. The newly enacted Right to Information Act, 2005
further strengthens the right to information.59
The Supreme Court, as a sentinel on the qui vive, tries to balance
the interface between constitutiona l executive responsibilit y and
constitutional judicial obligations. The affirmative action comes into its
own when the air of judicial enforcement rushes in to fill the vacuum
caused by administrative abdication. In the development of environmental
law in India, courts have accepted and applied certain significant
doctrines evolved in other common law jurisdictions as well as in the
arena of international environmental law. Public trust doctrines and
precautionary and polluter pays principles are some amongst them used
for settling the serious issues relating to the environment. There can be
no dispute that the society has to prosper, but it shall not be at the
expense of environment. In the like vein, the environment shall have to
be protected, but not at the cost of the development of the society.
Both the development and environment shall co-exist and go hand in-
hand. The courts in India slowly but steadily enlarged the scope of the
concept of quality of life and living and applied it to various issues
affecting the environment. Using the instrumentality of public interest
litigation the courts mainly relied on right to life in article 21, although
certain cases had wider perspective of the constitutional provisions
bearing on environment, especially those amongst fundamental rights,
directive principles and fundamental duties. Judicial activism has reached
such heights that when the written law is found to be weak; courts
readily rely on the right to quality of life for removing environmental
hazards. The concept of inter-relationship and inter-dependency, which
exists between human beings, nature and other life forms, is the essence
of well being of the human race. It is the collective responsibility of
the state and citizens, to maintain hygienic environment, though the
state has a particular duty to forge its policies to maintain ecological
balance and hygienic environment.
59. P.K.Das, The Right to Information Act 12 (2005).

2007 ] ENVIRONMENTAL PROTECTION & SUSTAINABLE DEVELOPMEN T 57
The judiciary is quite alive to the needs and rights of the present as
well as future generations. But the contributions of the courts would
only be marginal in achieving social, political and economic set up
conducive to sustainable development. The executive too must rise
from its deep slumber and commit itself for the cause of healthier
environmentalism. The sensitized civil society must act as a pressure
group for the promotion of societal interests. The answer towards
healthier environmentality could be traced through rethinking of a social
system on the path of its reversal to a life more close to nature,
reduction on materialism and adoption of new technologies, which
provide for societal growth and development without hampering in any
way the ecological maintenance.
V Conclusion: A statement of shared concern
The idea of sustainable development put forth in Our Common

Future was primarily designed to provide a normative-conceptual bridge
for joining environmental concerns with developmental possibilities.
The policy implications that flow from this framework are dependent
upon the assumptions made about limits—ecological, social, cultural,
technological , economic and, not least, political. The concept of
sustainable developmen t is presented against a backgroun d of
assumptions as to moral duties and obligations. The commission itself
proclaims that the issues raised in the report are ‘of far reaching
importance to the quality of life on earth—indeed to life itself, and
‘they have tried to show how human survival and well-being depends
on success in elevating sustainable development to a global ethic’.60
This global ethic is constructed on the assumption of duties and
obligation s in a specific historic context of growing ecological
awareness, ecological threats and widening north-south disparities and
agendas. It is in this broader context that the binding between the ‘goal
of development’ and the ‘proviso of sustainability’ must be understood
as a comprehensive ethical position.
This is a critical moment in earth’s history, a time when humanity
must choose its future. Our dear planet earth is perhaps the only
human habitat in the vast universe and we owe it to posterity to
preserve the divine heritage of our biosphere without pollution,
degradation and destruction. We must join together to bring forth a
sustainable global society founded on respect for nature, universal human
rights, economic justice and a culture of peace. To elevate sustainable
development to a global ethic, we must work against a background of
60. Supra note 3.

assumptions as to moral duties and obligations. Towards this end it is

imperative, that we declare our responsibility to one another, to the
great community of life, and to future generations. In order to build a
sustainable global community, the nations of the world must renew
their commitment to the United Nations and fulfill their obligations
under existing international agreements, which depend upon the behaviour
of the governments and will of the people. The challenge is to save and
restore the earth. Effective global environmental policies need to be
evolved through coordinatio n and cooperatio n of internationa l
community.
The process of globalization has produced such a high degree of
interconnectedness, interaction and development of global communities
of common discourse, that the emergence of global ethical thinking is
an inevitable concomitant to such developments. The ethic must be
global in scope, that is, to be a common universal ethic which includes
a commitment to global responsibility. To be truly motivational by
being both emotionally and intellectually engaging, the ethic that is
needed is one, which combines concerns for human well-being with
concerns for the environment. The former relates to the moral ground
rules for social co-existence — not harming one another, not deceiving,
coercing, stealing, etc. — with principles of distributive justice, which
enable everyone to have access to sufficient resources to realize their
basic rights. We must affirm the following interdependent principles
for a sustainable way of life as a common standard by which the
conduct of all individuals, organizations, businesses, governments, and
transnational institutions is to be guided and assessed:
1. Respect earth and life in all its diversity
a. Recognize that all beings are interdependent and every
form of life has value regardless of its worth to human
beings.
b. Affirm faith in the inherent dignity of all human beings
and in the intellectual, artistic, ethical, and spiritual
potential of humanity.
2. Care for the community of life with understanding, compassion,
and love
a. Accept that with the right to own, manage, and use
natural resources comes the duty to prevent
environmental harm and to protect the rights of people.
b. Affirm that with increased freedom, knowledge, and
power comes increased responsibility to promote the
common good.

3. Build democratic societies that are just, participatory ,

sustainable, and peaceful
a. Ensure that communities at all levels guarantee human
rights and fundamental freedoms and provide everyone
an opportunity to realize his or her full potential.
b. Promote social and economic justice, enabling all to
achieve a secure and meaningfu l livelihood that is
ecologically responsible.
4. Secure earth’s bounty and beauty for present and future
generations
a. Recognize that the freedom of action of each generation
is qualified by the needs of future generations.
b. Transmit to future generations values, traditions, and
institutions that support the long-term flourishing of
Earth’s human and ecological communities.
Common destiny beckons us to seek a new beginning. It requires a
new sense of global interdependence and universal responsibility. We
must imaginatively develop and apply the vision of a sustainable way of
life locally, nationally, regionally, and globally.

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30 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol.

ENVIRONMENTA L PROTECTION AND SUSTAINABLE

THE PRESENT day consensus reflects three foundational aspirations.

* B.Sc., LL.M., PhD; Reader, Department of Law, University of Jammu. The

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Humanity stands at a defining moment in history. We are

Ethical dilemmas abound in environmental politics. Environmental

3. WCED, Our Common Future 308 (1987).

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that human needs and interests are of highest, perhaps exclusive,

5. Carter, The Politics of Sustainable Development 15 (2001); see also, Principle

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at the very heart of the philosophica l endeavour. 8 Successful

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The Deep Ecology championed by the Norwegian Arne Naess and

A good environmental sense has been one of the fundamental features

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III Sustainable development: The convergence paradigm

One of the distinguishing features of holism is the view that humans

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philosophy right, for example, elevating the anthropocentric-ecocentric

14. Norton, Bryan, Toward Unity Among Environmentalists (1991).

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Figure: Three Visual

The Three pillars of sustainable development, from left to right, the

These have been drawn in a variety of ways, as pillars or concentric

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The sheer proliferation of definitions of sustainable development is

17. S. Lele, “Sustainable Development: A Critical Review” World Development

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21. Supra note 3 at 43.

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Policy Economy Society Discourse

JOURNAL OF THE INDIAN LAW INSTITUTE

Stage 4 Strong international Formal shift to Comprehensive cultural Community-led

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Four recurring elements appear to comprise the legal elements of

24. See generally, Phillip Sands, Principles of International Environmental Law

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development. Principle 1 states thus: “Human beings are at the center

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development, social development and environmental protection are

29. Kevin R. Gray, “World Summit On Sustainable Development :

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of the contemporary international environmental law and illustrates what

31. See, Preamble to the 1992 Convention on Biological Diversity: Conscious of

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The COP, in a separate decision, also launched a two-year dialogue “to

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of the International Court of Justice. An approach does not encapsulate

IV Towards sustainability: Environmental

Almost every national government in the United Nations now has a

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levels. They would also be the basis of diverse partnerships.

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working condition and sufficient to meet the needs of the people

41. Ibid. [Emphasis added].

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Precautionary principle and polluter pays principle

Precautionary principle was emphasized in principle 15 of the Rio

46. Basically, precautionary principle is a rule of evidence and particularly it

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