SUSTAINABLE DEVELOPMENT AND ENVIRONMENT: A STUDY

30th APRIL, 2017

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 TABLE OF CONTENTS

1. Statement of Problem vi
2. Research methodology vii
 Hypothesis
 Objectives
 Research Design
 Locale of Study
 Sources of Data Collection
3. Introduction 1
4. Sustainable development jurisprudence in Independent India 2-3
5. Principles of Sustainable Development 4-7
6. Conclusion 7
7. Bibliography 8

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 STATEMENT OF RESEARCH PROBLEM

1. What is the concept of sustainable development and how did it evolve?

2. What are the provisions for sustainable development in the Constitution of India?
3. What are the various principles of sustainable development?

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 RESEARCH METHODOLOGY

OBJECTIVES:
 To understand the concept of sustainable development in the light of Indian
Jurisprudence.
 To analyze its significance with regard to prevailing environmental conditions.
 To evaluate the various principles of sustainable development.

HYPOTHESIS: Sustainable development is the key feature of environmental protection

laws.

RESEARCH DESIGN: The study of this topic is based on doctrinal method and its
explanation. The researcher has followed a descriptive approach for the purpose of
explanation. This study is non-empirical.

LOCALE OF STUDY: This project work aims at explaining the concept of sustainable
development, its importance, its impact on environment protection, etc. the project also
explains the various principles of sustainable development which play a significant role in
conservation and improvement of environmental conditions.

SOURCES OF DATA COLLECTION:

The research has been conducted with the help of secondary sources:
 Books
 Websites
 Articles

METHOD OF WRITING AND MODE OF CITATION: The method of writing followed

in the course of this research project is primarily analytical. The researcher has followed
Chicago manual of citation throughout the course of this research project.

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 INTRODUCTION

Ancient Indian Jurisprudence on Sustainable Development Ancient Indian Jurisprudence is

well balanced with principles of sustainable development. The whole idea of living was based
on the harmonious coexistence with the nature. “Ma hinsyah sarva bhutani is a lesson of the
Rig Veda, meaning, ‘Do not harm anything’.”1 Elements of nature were respected to the
extent that they were personified as gods and worshipped. “Nearly all the higher gods of the
Rig Veda are personifications of natural phenomena, such as the sun, dawn, fire, wind and
rain.”2 Religion was the guiding force of the behavior of people in almost every area of life
of ancient India. State policies were also guided by the religious principles. Hindus, the
people who lived in ancient India, largely followed the Hindu religion or as it is also known
as Sanatan Dharma, which means religion which is in sustained since perpetuity. Two of its
core beliefs are that of tolerance and pluralism.

All beings, from the smallest organism to man, are considered manifestations of God.
Mankind carries a special responsibility, as it is believed to be the most spiritually evolved
with the capacity to not only tolerate, but honor the underlying equality and unity of all
beings. “Today, most discussions on environmentalism in our country begin with the
Stockholm Conference (1972). But, some ancient texts tell us that our society paid more
attention to protecting the environment than we can imagine. These texts tell us that it was
the dharma of each individual in society to protect Nature, so much so that people
worshipped the objects of Nature. Trees, water, land and animals had considerable
importance in our ancient texts; and the Manusmriti prescribed different punishments for
causing injury to plants.” Kautilya is said to have gone a step further and determined
punishments on the basis of the importance of a particular part of a tree.2

A special concern for environment, economy and society while balancing the economic
growth and social development is generally called as principle of sustainable development.
Each and every eco-system in which humans interact for development has its carrying
capacity. Principle of sustainable development mandates that while striving for economic
growth and social development caution should be taken for the carrying capacity of the
ecosystem.

1
Akshoy K. Majumdar, The Hindu History, Rupa and Co, New Delhi. 2010, p . 182.
2
C.M. Jariwala, Changing Dimensions of Indian Environmental Law, EBC, 1992, p.1

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 SUSTAINABLE DEVELOPMENT JURISPRUDENCE IN
INDEPENDENT INDIA

Constitution of India is the “Grund Norm of Sustainable Development”. One of the most
prominent features of the Indian constitution is that it talks about the composite development
of the people. We haven’t seen much discussion on the environmental aspect in the
constituent assembly debates but the social and economic aspects of development are
discussed in details and corresponding provisions were incorporated in the constitution. It has
mandatory as well as directory provisions. It can be a guiding force for the whole world. At
the very outset its’ Preamble secures to all its people; “JUSTICE, social, economic and
political; LIBERTY of thought, expression, belief, faith and worship; EQUALITY of status
and of opportunity;” 3
Social and economic development is expressly secured in the legal
framework of India. Protection and improving the natural environment saw the express
provision in the constitution of India for the first time in the form of fundamental duty of a
citizen enshrined in the Article 51A4 of the constitution. Environmental aspect has been read
and interpreted by the Indian courts as a natural corollary to various other provisions of the
constitution. Soon after introduction of this vital fundamental duty of the citizen, Indian
Supreme Court recognized it as very important landmark in the development of the Indian
sustainable development jurisprudence.

While deciding the case of Rural Litigation and Entitlement Kendra and Others v. State of
Uttar Pradesh and Others5, the Court held that “Consciousness for environmental protection
is of recent origin. The United Nations Conference on World Environment held in Stockholm
in June 1972 and the follow-up action thereafter is spreading the awareness. Over thousands
of years men had been successfully exploiting the ecological system for his sustenance but
with the growth of population the demand for land has increased and forest growth has been
and is being cut down and man has started encroaching upon Nature and its assets. Scientific
developments have made it possible and convenient for man to approach the places which
were hitherto beyond his ken. The consequences of such interference with ecology and
environment have now come to be realized. It is necessary that the Himalayas and the forest
growth on the mountain range should be left un-interfered with so that there may be sufficient

3
P.M.Bakshi, Constitution of India,Universal Law Publishing,2005,p.1
4
Section 11, Constitution (Forty-Second Amendment) Act, 1976, (w.e.f. 3-1-1977).
5
23 A.I.R 1987 SC 359.

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quantity of rain. The top soil may be preserved without being eroded and the natural setting
of the area may remain intact. We had commended earlier to the State of Uttar Pradesh as
also to the Union of India that afforestation activity may be carried out in the whole valley
and the hills. We have been told that such activity has been undertaken. We are not oblivious
of the fact that natural resources have got to be tapped for the purposes of social development
but one cannot forget at the same time that tapping of resources have to be done with
requisite attention and care so that ecology and environment may not be affected in any
serious' way; there may not be any depletion of water resources and long-term planning must
be undertaken to keep up the national wealth. It has always to be remembered that these are
permanent assets of mankind and are not intended to be exhausted in one generation.

We must place on record our appreciation of the steps taken by the Rural Litigation and
Entitlement Kendra. But for this move, all that has happened perhaps may not have come.
Preservation of the environment and keeping the ecological balance unaffected is a task
which not only Governments but also every citizen must undertake. It is a social obligation
and let us remind every Indian citizen that it is his fundamental duty as enshrined in Article
51 A (g) of the Constitution.”6 Right to clean environment has been read and interpreted as a
part and parcel of the Right to life enshrined under Article 21 of the Constitution of India.
Development, whether social economic or environmental, flows from various articles of the
constitution of India. Below mentioned table shows the facets of sustainable development
principles enshrined in the Constitution of India. Each and every article in the table below
guarantees and promotes the sustainable development in a unique way.

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Rural Litigation and Entitlement Kendra and Others v. State of Uttar Pradesh and Others, A.I.R 1987 SC 359

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 PRINCIPLES OF SUSTAINABLE DEVELOPMENT

1. INTERGENERATIONAL EQUITY

Intergeneration equity simply implies a duty of present generation towards future

generations. A trust in which the present generations of human being are obliged to take care
of the natural resources and ecology so that all future generations shall also have an equal
chance to enjoy the mother nature and right to life. “The present generation has a right to use
and enjoy the resources of the Earth but is under an obligation to take into account the long
term impact of its activities and to sustain the resource base and the global environment for
the benefit of future generations of humankind.”7

A trans-anthropocentric approach of development is essential for achieving sustainability in

growth and human settlements on earth. This report has very famously incorporated the duty
of present generations towards future generations in the following words: “Development that
meets the needs of the present without compromising the ability of future generations to meet
their own needs”8

2. PUBLIC TRUST DOCTRINE

The origins of the public trust doctrine are traceable to Roman law concepts of common
property. Roman law recognized the public trust doctrine whereby common properties such
as rivers, seashore, forests and the air were held by the Government in trust for free and
unimpeded use of the public. These resources were either owned by no one (res nullious) or
by everyone in common (res communious).

All natural goods are hold by the state in public trust for the equitable distribution of them.
Private ownership of the natural resources can lead to undue deprivation of natural resources
for a large section of society. Therefore the modern state is mandated to hold them in public
trustee and ensures the equal distribution for a sustainable social structure of the human
beings. “The public trust doctrine is more than an affirmation of State power to use public

7
Marie-Clare Cordonier Segger and Ashfaq Khalfan, Sustainable Development Law Principles, Practices and
Prospects, Oxford University Press, New Delhi, 2004, p.99.
8
Report of the World Commission on Environment and Development, United Nations, 1987,

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property for public purposes. It is an affirmation of the duty of the State to protect the
people's common heritage of streams, lakes, marshlands and tidelands, surrendering the right
only in those rare cases when the abandonment of the right is consistent with the Public Trust
Doctrine Affirmation of State power to use Public Property for Public Purposes. Affirmation
of the Duty of the State to protect People's Common Hritage . Estelar 25 purposes of the
trust.” 9
The modern tenets of public trust were evolved in Illinois Central Railroad Co. v.
People of the State of Illinois10. In this early case the Supreme Court of United States
differentiated the nature of title of the state in the land intended to be used for public good
from the land intended for sale or other commercial purposes.

3. PRECAUTIONARY PRINCIPLE

Principle 15 of the Rio Declaration, 199223 declares “Where there are threats of serious or
irreversible environmental damage, lack of full scientific certainty should not be used as a
reason for postponing measures to prevent environmental degradation.” International Law
Association, New Delhi Declaration 200211 postulates a much wider definition of the
precautionary principle. Traditionally precautionary principle was deemed related to only
environmental safety and standards. After New Delhi Declaration, scope of precautionary
approach has widened. It declares the principle of precautionary approach as under: “The
principle of the precautionary approach to human health, natural resources and ecosystems. A
precautionary approach is central to sustainable development in that it commits States,
international organizations and the civil society, particularly the scientific and business
communities, to avoid human activity which may cause significant harm to human health,
natural resources or ecosystems, including in the light of scientific uncertainty. Sustainable
development requires that a precautionary approach with regard to human health,
environmental protection and sustainable utilization of natural resources should include:

a) accountability for harm caused (including, where appropriate, State responsibility);

b) planning based on clear criteria and well-defined goals;

c) consideration in an environmental impact assessment of all possible means to achieve an

objective (including, in certain instances, not proceeding with an envisaged activity); and

9
Dr. Geir B. Asheim, Intergenerational Equity, Annual Review of Economics, Vol-2, September 2010
10
146 (1892) U.S. 387.
11
Report of the Seventieth Conference, International Law Association, New Delhi, 2002

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d) in respect of activities which may cause serious long-term or irreversible harm,
establishing an appropriate burden of proof on the person or persons carrying out (or
intending to carry out) the activity.

4. POLLUTER PAYS PRINCIPLE

It is also known as the principle of extended producer responsibility. With the advent of the
modern industrial revolution, scheme of production in factories added idea of externalizing
the waste. It caused pressure on the surrounding environment and the need of polluter pays
principle arose. Those, who damage the environment should bear the cost of such damage, is
the underline idea of the polluter pays principle. Defining in the abovementioned principle
while delivering judgment in the matter of Indian Council for Enviro-Legal Action v Union
of India and others12, Justice Dalveer Bhandari for himself & Justice H. L. Dattu said, “The
polluter pays principle demands that the financial costs of preventing or remedying damage
caused by pollution should lie with the undertakings which cause the pollution, or produce
the goods which cause the pollution. Under the principle it is not the role of government to
meet the costs involved in either prevention of such damage, or in carrying out remedial
action, because the effect of this would be to shift the financial burden of the pollution
incident to the taxpayer. The 'polluter pays' principle was promoted by the Organization for
Economic Cooperation and Development (OECD) during the 1970s when there was great
public interest in environmental issues. During this time there were demands on government
and other institutions to introduce policies and mechanisms for the protection of the
environment and the public from the threats posed by pollution in a modern industrialized
society.” 13

5. 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.14 In Rylands v. Fletcher15, 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

12
2011 (8) SCC 161.
13
Ibid.
14
David Hughes, Environmental Law, (Second Edition, Butterworths, London, 1992), p. 25.
15
(1868) LR 3 HL 330

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get relief from payment of damages to the victim. 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.

CONCLUSION

There is a significant progress in providing legal protection to environment but there are
several loopholes. Though under Indian legislative environmentalism there are many
enactments such as Water Act, Air Act, the Forest conservation and the recent comprehensive
Environment (Protection) Act, they are inadequate to deal with present contingency. India is
in need of a new effective legislation for this 21st century and venture to have the U.S model
of legislative planning and open public scrutiny. The principle of sustainable development
must be recognized and emphasis on Environmental Impact Assessment is needed. India
being developing country it concentrate on the socio-economic development but it must be in
co-ordination with environmental upgradation. Though, the Environmental (Protection) Act
is very ambitious and maintained different ingredients of the environment in India,
environment protection has been dominated more by socio-economic constraints and the
priority of development. Therefore, sometimes with several compromises, the objective lost
which has resulted in the failure of legislative mission. The rapid growing population and
economic development is leading to a number of environmental issues in India because of the
uncontrolled growth of urbanization and industrialization, expansion and massive
intensification of agriculture, and the destruction of forests. Major environmental issues are
384 Forest and Agricultural land degradation, Resource depletion (water, mineral, forest,
sand, rocks etc) Environmental degradation, Public Health, Loss of Biodiversity, Loss of
resilience in ecosystems, Livelihood Security for the Poor.

To combat these problems, world bodies like the United Nations and the World Commission
on Environment and Development have been formulating ideas for environmental protection
and sustainable development.

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 BIBLIOGRAPHY

Books referred:
 Hughes D., Environmental Law, (Second Edition, Butterworths, London, 1992).
 Shastri S.C., Environmental Law, Fifth Edition, Eastern Book Company.
 Tripathi S.C., Environmental Law, Central Law Publications

Websites referred:
 http://worldinbalance.net/pdf/1987-brundtland.pdf
 http://shodhganga.inflibnet.ac.in
 http://www.ila-hq.org/en/publications/order-reports.cfm
 https://www.academia.edu/

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