International Journal of Legal Studies and Research (IJLSR)

EVOLUTION OF SUSTAINABLE DEVELOPMENT IN THE EYES OF ENVIRONMENTAL LAW AND ITS APPLICATION IN INDIA Bashudeb Guha1& Subhashree Mukherjee2 ABSTRACT Man’s reciprocal relation with the nature is time immemorial. The effects of interrelation between the mother earth and human beings draw an indirect concept of sustainable development. Sustainable development means a balance between environment and development. Only a proper balance can maintain the sustainability and its absence will leave a negative impact on entire human kind. The world community, thus recognizing the importance of environment and development, organized various international conventions, conferences and declarations. Among them Stockholm and Rio declarations are noteworthy. The Brundtland report also played a vital role in conceptualizing the theme of sustainable development. However, provisions for environmental protection and sustainable development were inserted in the Constitution of India only after 1976. After that, many significant changes were gradually made in the Indian municipal law. The Indian judiciary through its various landmark judgments also promoted the concept of sustainable development. Though this is a welcoming approach, a lot more is required to be developed further.

KEY WORDS Environment, Sustainable Development, Human Being, Law, Protection.

INTRODUCTION The interrelation between human being and ecology has changed since inception. If we put focus on ancient history then we can find that early civilization considered nature as a strong dominating force and that is why they paid respect and worshipped different forms of nature like forests, trees, mountains, rivers, animals, etc. They were in fact very much scared of these forces of nature like tidal waves, earthquakes, rain, thunder, lightning, etc. The life supporting system was very primitive in nature. Gradually with 1

Author, Assistant Professor of Law, JRSET College of Law, Palpara, Chakdaha, DistNadia (e-mail: [email protected]). 2 Co-author, Assistant Professor of Law, JRSET College of Law, Palpara, Chakdaha, DistNadia (e-mail: [email protected]).

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the advent of civilization, man learnt the use of fire and since then human beings did not have to look behind again. They applied fire in carving their tools for hunting, for clearing grasslands to make it a place of living and consequently found its various other usage. With the passage of time civilization developed and now the world is flooded with the concepts of industrialization and globalization. By the famous industrial revolution, the concept of highly mechanized industries arrived along with other machinery. Collaterally other scientific and technological development also started. The advancement in agricultural sector resulted in creating agricultural systems management and it provided crops or food in abundance and helped people to settle down in one place. Other developments like developments in medical jurisprudence also relieved the humanity from serious diseases and epidemics, increased the life span of human beings and positively affected the life-death ratio. But now the largescale consumerism has lifted the entire human civilization at the brink of destruction because our needs have gone too far and perhaps beyond our control. The same factors that earlier helped the human beings in reaching its goal has manipulated the environment in a negative way. The growing scale of urbanization has in fact made the simple relation between man and environment more complex. The so-called modern inbuilt supporting system has drained the idea of nature and little by little, it is being vanished. Today man has changed the environment according to his own needs and obviously to satisfy his greed and in this feeling, it reached the maximum production limit and has exhausted its own natural resource. The alarming fact is that after exploiting its own resource, now it has started to borrow the resources meant for future generations and that is definitely an irreversible damage. This situating is getting more and more dangerous as we are utilizing, exploiting and depleting the resources that are the property of future generation. In true sense, the present generation cannot claim any sort of ownership or anything like that over the natural resources and hence the natural resources of the earth are not only meant for the present generation but it also includes proper utilization by the future generation. Therefore, at this moment a balance is very much required for the maintenance, preservation and distribution of the natural resources between the huge population growth and the availability or utilization of the available resources. Only a proper balance can guarantee the continuation of human race in such circumstance and its absence will adversely affect the entire humankind.

HISTORY AND EARLY DEVELOPMENTS The concept that for the advantage of the upcoming generations, the present generation should be sincere in their utilization of the natural resources has found huge intercontinental support from the time when the ‘Maltese

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Proposal’ at the United Nation General Assembly came into light in 1967. It said that the entire humankind has a common heritage that needs immediate legal protection from all corners of the international community. In this way, the total concept of development is based on the postulate that natural resources such as seabed are not the fruits of labour of present generations and thus such resources can only be exploited with adequate consideration of the rights of the future generations.3 The idea of using the earth’s natural resources in a sustainable manner is of ancient origin. It is so important that without the principle of sustainable development life would not be able to survive on earth particularly in the twenty first century. The term “Sustainable Development” was used at the time of Cocoyoc Declaration on Environment and Development in the early 1970s. Since then it has become trademark of international organizations dedicated to achieving environmentally benign or beneficial development.4 In 1972, commissioned by the Club of Rome and funded by the “Volkswagen Foundation”, the book “Limits to Growth” 5 which was first presented at the St. Gallen Symposium attempts to model the consequences of a growing human population in a world of finite resources, concluding that current patterns of growth cannot be sustained indefinitely. 6 It highlighted the effects of interaction between earth and human system and faintly draws an indirect idea about the concept of sustainability. Thus, sustainable development gradually became widely acceptable as the most important goal of economic and social activity. Recently it gained huge global importance and popularity with the publication of “Our Common Future” in 1987 (popularly known as Brundtland Report) by the World Commission on Environment and Development. Sustainable Development also formed the foundation stone underlying the Earth Summit and predominated the Rio Declaration on Environment and Development in 1992.

MEANING AND DEFINITION Sustainable development signifies an amalgamation of developmental and environmental imperatives. For turning sustainable, development must 3

Meinhard Schroder, Sustainable Development- A Principal of Action and Instrument to Secure the Conditions of Survival of for Future Generations?, 51 Law and State 101 (1995). 4 Michael Redclift, Sustainable Development- Exploring the Contradictions 32, Routledge (1987): The book argues that environmental problems requires to be viewed internationally, in terms of the global financial coordination and the cause of environmental deterioration is historical not natural and is invariably linked and nurtured by global economic and political activities. 5 Authors are Donella H. Meadows, Dennis L. Meadows, Jorgen Randers, and William W. Behrens III, Publisher- Universe Books. 6 Carl Mitcham, The Concept of Sustainable Development: its Origins and Ambivalence, 17 (3) Technology In Society, 314-315 (1995).

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definitely include economical and ecological sustainability. Sustainable development paves the way in which growth and planning should be considered. The concept of sustainable development gives importance to strategy formulation or goal rather than substantive prescription. Its foremost value lies in the fact that it modifies the previous theory of absolute development. The way in which the expression “sustainable development” is applied and is being interpreted, so differently that it would be right to call sustainable development a “contradiction in terms”.7 This international concept, though eventually an abstract, has certain semantic roots. The majority of the public use the term “sustainable development” synonymously with eco-financially sustainable or environmentally based development. In such connection, sustainable development at times is often interpreted as “sustained intensification”, “sustained transformation”, or merely “environmental development”. However, the clear and unambiguous idea of sustainable development was generated by the World Commission on Environment and Development (the Brundtland Commission- Chaired by the Hon’ble Prime Minister of Norway Dr. Gro Harlem Brundtland), which was established by the United Nations General Assembly in 1983 and in 1987 it published a report entitled “Our Common Future”. The report of 1987 defines sustainable development as follows: “Sustainable development is development that meets the needs of the present without compromising the ability of the future generations to meet their own needs. It contains within it two key concepts: 1) The concept of ‘needs’, in particular the essential needs of the world’s poor, to which overriding priority should be given; and 2) The idea of limitations imposed by the state of technology and social organization on the environment’s ability to meet present and future needs.”8 At present, this is the most popular definition of sustainable development. The United Nations Environment Programme went a step further to clarify the ambit of sustainable development. According to it, sustainable development includes the advancement in the fields of national and 7

Tim O’Riordan, Future Directions in Environmental Policy, 17 Journal of Environment and Planning 1431-1446 (1985). 8 The World Commission on Environment and Development, Our Common Future 43, Oxford University Press (1987).

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international equity and also the preservation, protection, rational use and enhancement of the natural resource stock that holds the ecological system and economic growth. Another interpretation of sustainable development has been made by Herman Daly, an economist at the World Bank, who suggested three rules for sustainable development. The rules are: 1) Harvest renewal resources only at the speed at which they regenerate. 2) Limit wastes to the assimilative capacity of the local ecosystem or release those wastes elsewhere where they can be assimilated; and 3) If you use a non-renewable resource, require that part of the profit be put aside for investment in a renewable substitute resource.9

IMPACT OF STOCKHOLM DECLARATION The concept of sustainable development gained some elementary status in the Stockholm Declaration on Human Environment that emerged from the United Nation Conference on Human Environment in 1972. This UN Conference is a landmark conference on international environment as it placed the issues of protection and preservation of biosphere on the official agenda of international policy and law. Thus, it included two conflicting concepts at the primary stage. The first perception was bent on giving main priority to the human impact on environment with special care about minimization of pollution and conservation of natural resources. Whereas, the second perception gave importance to the social and economic development as the main issue. These two contradictory approaches were connected by a notion that environment protection is an indispensable factor of social and economic development. Both environment and development are the two sides of a coin and thus, emphasis is needed to be given on both of them. The United Nation Conference on Human Environment, held at Stockholm from June 5 to 16, 1972, was the most successful international discussion held in recent years. In a two week time period it adopted not only a fundamental declaration and a comprehensive resolution on institutional and pecuniary arrangements, but also more than hundreds of recommendations (total 109 recommendations 10 ) comprising a determined action plan. The

9

S. Santhakumar, Introduction to Environmental Law 110-111, LexisNexis Butterworths Wadhwa (2010). 10 Louis B. Sohn, The Stockholm Declaration on the Human Environment, 14(3) Harvard International Law Journal 423 (1973).

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conference has a huge significance as 114 countries participated in it and thereby agreed that the world has just only one environment. Thus, to secure the environment for the present and future generations has become a positive goal for the entire humankind and is required to be approached, together with harmony the existing and established principles of peace and global socio-economic development. For achieving this positive goal, the Stockholm Conference laid down 26 imperative principles to be followed by the government and the peoples of the member states to make use of mutual attempts for protecting, preserving and improving human environment. The below table contains the important principles that have a direct reflection of sustainable development: Component of Positive Goal Peace and Security

Economic Development

Principle No. 26

8

18

Social Development

1

16

8 and 18

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Subject Matter in Brief All the countries must try together to eliminate all weapons of mass destruction including nuclear weapons because man and his environment must be protected the effects of these sort of weapons. Development in social and economical aspects is very important for creating and securing favourable conditions for good working and living environment and for improving the quality of life. Science and technology must be applied to identify and control environmental risks and to solve environmental problems for the benefit of entire humanity. Man has certain basic rights including right to live in a quality environment that secures well dignified life and also has a responsibility of protecting and improving the environment for both the present and future generations. Demographic policies should be applied by the governments in that region where high concentration of population may adversely affect the human environment and obturate the path of development. Already has been discussed above under ‘Economic Development’.

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National Governance that Guarantees Development and Peace

13

14

15

17

16 and 26 Weak Measures for Environmental Protection Because These Principles of Stockholm Declaration does not Directly Relate the Development Process with Environment

2

3 4

5

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To manage the resources more rationally, the states should include necessary approach in their developmental planning so that it ensures development is compatible with the need to improve and protect human environment. Rational planning is an important tool for balancing development on one hand and protection and improvement of the environment on the other. Planning must be applied to urbanization and human settlements with a view to maximize socio-economic and environmental benefits and avoid untoward effects on the environment. National institutions must be consigned with the duty to plan, manage and control the environmental resources with an objective of raising the quality of environment. Already has been discussed above under ‘Social Development’ and ‘Peace and Security’ respectively. For the promotion of well being of both the present and future generations water, air, land, flora, fauna and all other natural resources of the earth must be protected through reasonable care, planning and management. The earth’s capacity to produce renewable resources must be maintained and if necessary, must be improved or restored. Man has a unique and specific obligation to make safe, protect and manage wisely the wildlife and its habitat that is now being endangered and therefore, it must get due importance in economic development’s planning. The earth’s non-renewable resources must be put to use in such a manner that it does not get exhausted in the future and thus benefitting all from such use.

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6

7

Index for Developing Countries

9

10

11

12

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The discharge of toxic and related substances and the release of heat must be stopped when they are in such large quantity or in such high concentration so as to exceed the environment’s capacity to clean itself in order to assure that serious irreversible damage is not caused to the ecosystem. The justified struggle of the countries against pollution should also be encouraged. It imposes a duty on the states to take necessary steps to prevent marine pollution by substances that create health hazards and harms marine life and other living resources. Environmental deficiencies that are brought into existence by the prevailing context that influences under development and natural disasters must be remedied by stimulated development through transfer of technological and financial assistance to the developing countries. Stability of prices and sufficient earnings for raw materials and primary commodities are essential for developing countries for environmental management. The environmental policies of all the countries should be raised and it should not affect the living conditions of all or affect the present and future potential of the developing nations and appropriate steps are required to be taken by the countries and various international organizations on meeting the economic consequences resulting from it. It is necessary to provide financial and technical assistance to the developing countries for preserving and improving the environment taking into account the circumstances, particular requirements and upon their requests and for incorporating certain safeguards for environment into their development planning.

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POST STOCKHOLM PERIOD Immediately after the Stockholm Conference, the evolution of soft law norms with regard to the protection and preservation of the human environment began. In fact, it led to the formation of a unique subsidiary organ of the United Nations General Assembly known as the United Nations Environment Programme. This organ was created to play a key role in environmental protection and formulate principles and plans for environmental preservation. Soft law instruments such as principles, declarations, resolutions, charters and outcomes of international conferences are not binding in nature. It means they do not have any legal binding and are not enforceable in the court of law. However, the moral importance of these instruments is very high in nature as they are the reflection of the world community. Therefore, it is generally inferred that soft law norms focuses on the objectives to be achieved in future rather than actual duties and guidelines of immediate strict adherence. In such a scenario, a plan of action was proposed to government and public bodies around the world. It was known as the World Conservation Strategy. It was prepared by the International Union for Conservation of Nature in 1980 with the kind cooperation of the World Wildlife Fund and United Nations Environment Programme to identify a wide range of priorities and achieve three significant objectives namely, the maintenance basic ecological processes and life support systems; the preservation of genetic diversity and; the sustainable use of species and ecosystems. To observe ten years of Stockholm Conference, at the request of the President of Zaire, International Union for Conservation of Nature prepared the World Charter for Nature, which has been adopted and solemnly proclaimed by the United Nations General Assembly on 28th October, 1982. The Charter11 declares principles of preservation and protection by which all human behaviour affecting nature is to be guided and judged and incorporates the three objectives of the World Conservation Strategy apart from Stockholm principles. The World Commission on Environment and Development also positioned prominence on the necessity to preserve biodiversity and to follow the principle of optimum sustainable yield in the use of natural resources. In fact, the United Nations General Assembly for the framework for future cooperation accepted the conclusions of the Brundtland Report in 1987 in the field of environment and development. In 1991 the successor to the World Conservation Strategy, Caring for the Earth, was developed in mutual aid with the United Nations Environment Programme. It ponders over the following areas namely, energy, business, industry and commerce, human settlements, farm and range lands, forest lands, fresh waters, oceans 11

The Charter states on its preamble that “every form of life is unique, warranting respect regardless of its worth to man”.

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and coastal areas. It is a rambling discursive document and thus describes actions that are essential for achieving sustainable development. It includes a wide series of stipulations on environmental strategy along with substantial section on the content of environmental law.12

INFLUENCE OF UNITED NATIONS CONFERENCE ON ENVIRONMENT AND DEVELOPMENT The United Nations Conference on Environment and Development that is generally known Earth Summit, was subsequently held in 3-14 June, 1992 at Rio de Janeiro (Brazil). It involved around 178 countries, including 110 heads of state or government that went to the final two-day meeting.13 This was the leading United Nations conference till date and it explained the relationship between environment and development by raising interesting motion about the liaison between international environmental law and international economic and developmental law. It set the world on a path of sustainable development that aim at the prospects of present and future generations. The Earth Summit, also known as the Rio Summit, was more generously proportioned and organized than the Stockholm conference of 1972 and it was first time in the history of civilization that so many significant people had accumulated in one position. The source of inspiration and guidance of the Earth Summit was the incredible document of 1987, i.e. Brundtland Report. The Earth Summit required the people universally to re-think how their lives influence natural atmosphere and resources and to deal with a new environment that ascertains the ambience in which they survive. However, some of the major thrust areas of Earth Summit are Rio Declaration, Agenda 21, Forest Principles and two legally binding conventions (Convention on Climate Change and Biodiversity). Here, only the first two major thrust areas that has strong and direct relation with sustainable development have been discussed further: THE RIO DECLARATION The Rio Summit sent alarm signals to member states that unless and until the whole humanity comes together to preserve the earth and its environment, life would become agonizing and intolerable day by day. The Rio Declaration consists of 27 principles to steer actions in context to the environment of nations and individuals. It formulates the command of 12

Philippe Sands, Principles of International Environmental Law-1: Frameworks, Standards, and Implementation 25, Manchester University Press (1995). 13 Ralph. P. Hall, Understanding and Applying the Concept of Sustainable Development to Transportation Planning and Decision-Making in the U.S. (February, 2006) (unpublished Ph.D. dissertation, Massachusetts Institute of Technology, Cambridge) (on file with author), 250.

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sustainable development as the foundation for international, municipal and local action. The below table contains the important principles which are as follows: Thrust Area Peace and Security

Principle No. 24

25 26 Economic Development

5

12

25 Social Development

1

8

112

Subject Matter in Brief States shall protect the environment in times of war and other armed conflict because war causes devastating effects on sustainable development. Protection of peace, development, and environment are mutually depended and cannot be segregated from one another. Environmental disputes, if any, shall be adjudicated by the states peacefully and in conformity with the United Nations Charter. It focuses on poverty eradication and states that all people and all states shall together cooperate in poverty eradication since it is an essential requirement for sustainable development and thus disparities in living standards can be minimized. States should contribute to the progress of a supportive and open international economic system for facilitating sustainable development and economic growth in all countries and to give due attention to the issue of environmental degradation. Already has been discussed above under ‘Peace and Security’. The most essential object upon which interest and attention of sustainable development is focused is the human beings and they are qualified for by right according to law to a productive and healthy life in concordance with nature. For achieving sustainable development and better attributes of life, states should focus on reduction and elimination of unsustainable patterns of consumption and production and promotion of demographic policies.

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20

21

25 National Governance that Guarantees Development and Peace i.e. Secures Sustainable Development

3

10

11

13

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Full participation of women in environmental management and development is necessary for achieving sustainable development because women play an important role in these spheres. Youths, owing to their creativity, ideals and courage should be mobilized so that a global partnership can be forged to achieve and ensure sustainable development and better future to all respectively. Already has been discussed above under ‘Peace and Security’. The right to development must be so designed that it in an equitable manner meets developmental and environmental needs of both the present and future generations (Doctrine of Intergeneration Equity). With the active participation of citizens, environmental problems are best addressed and therefore, each citizen has a right to access to information regarding environment, so as to include information about hazardous object and participation in decision-making. States shall also promote awareness among public by making easy accession of necessary information. It also provides for effective redressal of judicial and other related proceedings. It imposes a duty on the states to legislate effective and good environmental laws reflecting good environmental standards and management objectives in respect to environmental and developmental context. States shall make national laws for creating liability and paying compensation to the victims who are affected by pollution and other related environmental damage. It also states that all the countries need to cooperate in an efficient manner to give it a status of international law.

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22

Strong Measures for Environmental Protection Because These Rio Principles Directly relate the Development Process with the Environment

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Local communities including communities of indigenous people due to their traditional knowledge and practice plays a key role in development and environmental management and therefore, the states must realize and support their culture and identity for promotion of sustainable development. 4 Environmental protection shall form an inseparable and inherent part of the process of development for achieving sustainable development (Doctrine of Sustainable Development). 7 All the nations need to help and cooperate each other in a good spirit to protect, conserve and restore the health and undivided completeness of the ecosystem of the earth because the states has some common responsibilities. 8, 11, 13, Already has been discussed above under 25 and 26 ‘Social Development’, ‘National Governance that Guarantees Development and Peace i.e. Secures Sustainable Development’, ‘Economic Development’ and ‘Peace and Security’ respectively. 14 All the states shall efficiently cooperate to prevent or restrict the transfer from one state to another of substances that severely degrades the environment or harms human health. 15 Precautionary approach needs to be widely applied by all countries and where there is danger of irreversible serious damage, lack of scientific certitude should not be used as a cause for postponing measures to stop environmental degradation (Precautionary Principle). 16 National authorities shall attempt by employing efforts to encourage the universalization of environmental costs, taking the view that the polluter shall with due importance to the public interest pay the cost of pollution (Polluter Pays Principle).

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17

18

19

23

If any proposed activity is likely to have substantial adverse effects on the environment, then such proposed activity shall contain an undertaking of environmental impact assessment. It imposes a duty on the nations to immediately notify other nations about any natural disaster or related emergencies that can result in sudden adverse impact on the environment of those nations and the international community shall make efforts to help such affected nations. It states that where any activity of a state might cause adverse transboundary effects on the environment, then it should enter into good faith and early consultation into an effort to reduce such effects with other states and shall also provide timely and prior notification and necessary information to other states. The natural resources and environment of oppressed and dominated people shall be protected.

AGENDA 21 Agenda 21 is the plan of action for the Rio declaration that was agreed to by all governments at the United Nations Conference on Environment and Development in 1992. It is a non-binding instrument. The preamble of Agenda 21 presents a set of strategies, plans and actions that are essential for achieving Rio declaration’s successful implementation by reversing the effects of environmental degradation and promoting environment friendly and sustainable development in all countries and also sets the liability mainly on national governments for achieving sustainable development. In this regard due importance has been given to private sectors and other units of civil society to reinforce Agenda 21 in the form of community based action. Agenda 21 has been prepared using four dominant sections: a) Social and Economic Dimensions- It contains recommendations for transnational support to stimulate sustainable development in all the states, domestic planning and policies, fighting impoverishment, altering consumption patterns, preserving health, promoting environment and development in all the spheres, etc. b) Conservation and Resource Management- This part is

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focused on protection of the atmosphere, minimizing deforestation, managing weak ecosystem, promoting sustainable agricultural system, preserving biodiversity, protection of the oceans and seas, management of the quality of fresh water resource, environmental friendly disposal of solid, liquid and radioactive wastes, etc. c) Strengthening the Role of Major Groups- It prescribes for more participation of women, children and youths in sustainably balancing the environment, fortifying the role of aboriginal people, sharpening the role of various social groups and non-governmental organizations towards achieving sustainable development, participation of local authorities in implementing Agenda 21, signifying the position of workers and trade unions, etc. and d) Means of Implementation- It relates to economic resources and framework, transfer of green technology, mutual understanding and cooperation, international legal documents and systems, promotion of education, training and public awareness, etc. Each of these objectives include exhaustive observation and research on diverse range of issues that express their intention by defining the foundation for action, the targets of the action, the probable areas of activity and the means of enforcing the objectives or activities. Seeing Agenda 21 as a plan of action, the exact particulars of achieving its objectives has been left to the decisionmaking institutions and non-governmental organization groups because it focuses on making a global joint venture among governments, common public, non-governmental organizations and other groups for sustainable development. Agenda 21 contains forty chapters and thus provides a broad framework to the governments so that they can assess their activities. Therefore, Agenda 21 is more comprehensive than the 1972 Stockholm plan of action. Among various recommendations present in Agenda 21, one calls for the constitution of a United Nations Commission on Sustainable Development to supervise the development in the implementation of the plan of action. Thus, Agenda 21 reflects a global agreement and political dedication at the highest level for achieving sustainable development. Environmental problems cannot be simply resolved by adopting strict regulations because they require progressive cooperation from all the States. The notion of conservation and promotion of the environment can only be realized through transnational endeavour, as environment is not the interest of one country or group of countries, but of this entire world.

INDIAN CONSTITUTION AND SUSTAINABLE DEVELOPMENT In early days, environmental problem was not grave due to the reason of lower rate of population expansion and lack of industrialisation, with the exception of few big cities. But now protection of the environment is the

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most difficult task. Truly speaking, at the time of framing of the Indian constitution, it did not contain any matter such as environmental protection. The constitution basically included the rule of law, various rights of the citizens, and innumerable guidelines for making a better country as India was just released from the prolonged colonial rule and thus, making it bulky in character and ideal in nature. Therefore, owing to the length of the constitution, it was very difficult to include a direct and specific stipulation relating to the protection, preservation and promotion of healthy environment. However, indirectly it can be located in Article 47 that reads as follows: “The state shall regard the rising level of nutrition and the standard of living of its people and the improvement of public health as among its primary duties”. This article declares for improving public health as one of the basic function of the state and it can be well interpreted to include the protection and preservation of the environment. Indirect references can also be seen in Article 21, which states that: “No person shall be deprived of his life or personal liberty except according to procedure established by law”. The Hon’ble judiciary through various judicial decisions included environmental protection in the expanded periphery of Article 21. The constitution also conferred a right on all the persons to file a case for enforcement of fundamental and various other rights in the Supreme Court and High Courts through Article 32 and Article 226 respectively. Thus, the constitution of India was devoid of any specific stipulation for securing sustainable environment until further amendments were made. In this regard, credit goes to the United Nations Conference on Human Environment, 1972 at Stockholm, which is popularly known as the Stockholm Conference. The Stockholm Conference showed the world the significance for the realization of the need to preserve and protect the natural environment. To abide by the principles of the Stockholm Declaration, the Government of India in 1976 by the Constitution 42nd Amendment Act enacted direct provisions for the protection and preservation of the environment by inserting Article 48-A under Directive Principles of State Policy and 51-A(g) under Fundamental Duties. 14 The Indian Constitution on the one hand issues directive to the State for the protection and improvement of environment as Article 48-A states that: “The State shall endeavour to protect and improve the environment and to safeguard the forest and wildlife of the country” and on the other hand imposes a duty on the citizens to protect and improve natural environment through Article 51-A(g) which says that: “It shall be the duty of every citizen of India to protect and improve the natural environment including forests, lakes, rivers and wildlife and to have compassion for living 14

R. Balamurugan, S. Inbakumar and R. G. Sethuraman, A Critical View on the Impact of Constitution of India as Internal Regulatory Mechanism for Environmental Issues and Policies, 4 (3) Indian Journal of Science and Technology 263 (2011).

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creatures”. Apart from inserting new articles, the constitution was amended number of times and made significant changes in: 1) The Seventh Schedule 15 of the Constitution by inserting following entries: (a) Entry 17 A- Providing for forests. (b) Entry 17 B- Protection of wild animals and birds. (c) Entry 20 A- Population control and family planning. 2) The Eleventh Schedule 16 of the Constitution by assigning various functions of agricultural extension, soil conservation, social and farm forestry, drinking water, public health, etc. to the Panchayats with a vision to manage sustainable environment. 3) The Twelfth Schedule 17 of the Constitution by imposing various functions of regulating land use, water supply for various purposes, public health, urban forestry, protection and promotion of environment and ecological aspects, construction of parks and gardens, prevention of cruelty to animals, etc. to the urban local self-government bodies like the municipalities keeping in mind protection and preservation of the environment. Due to the above changes in the constitution, the Government of India in order to have a uniform policy in the environment and forest management of the country, set up the Ministry of Environment and Forests in 1980 with a view to achieve sustainable development in such a way that both environment and development can progress further not by contradicting each other but in a harmonious manner.

ROLE OF INDIAN JUDICIARY The Hon’ble Judiciary is also a vital collaborator in preserving and promoting environmental governance, safeguarding the rule of law and in ascertaining a fair and reasonable equilibrium between environment and development through its various judgments and observations. Over the years, courts in various jurisdictions have shown a paradigm shift towards international environmental law relating to the protection of the rights of future generations. Moreover, with the rise in the concept of Public Interest Litigation protection of environment became more easily enforceable in the courts of law. 15

Through the 42nd Amendment Act, 1976 inserted in the Concurrent List. Inserted by the Constitution (Seventy-Third Amendment) Act, 1992 (w.e.f. 24.04.1993). 17 Inserted by the Constitution (Seventy-Fourth Amendment) Act, 1992 (w.e.f. 01.06.1993). 16

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In the famous case of Gabcikovo Nagymaros Dam,18 the International Court of Justice observed that: “the environment is not an abstraction but represents the living space, the quality of life and the very health of human beings, including generations unborn. The existence of the general obligation of States to ensure that activities within their jurisdiction and control respect the environment of other States or of areas beyond national control is now part of the corpus of international law relating to the environment.” In Rural Litigation and Entitlement Kendra, Dehradun vs. State of Uttar Pradesh,19 the Supreme Court of India for the first time encountered with the problem of environment and development and agreed to the fact that the permanent assets of mankind including natural resources should not be exhausted in one generation and therefore, should be consumed sustainably so that the upcoming generations can also utilize it. The Supreme Court in Sachidanand Pandey vs. State of West Bengal 20 observed that problem of ecology, whenever arises, should be brought before the court, bearing in mind Article 48-A and Article 51-A(g) of the constitution. It also stated that when the court has been called to implement directive principles and the fundamental duties in respect of sound environmental principles, it should not shrug its shoulders and give excuses. In certain conditions, the court should proceed further and always confer necessary guidelines. In People United for Better Living in Calcutta vs. State of West Bengal,21 popularly known as Calcutta Wetland Case, the Calcutta High Court said that as India is a member of the Ramsar Convention on Wetland, 1971 therefore, is duty bound to protect wetlands and side by side promote preservation of wetlands. The Supreme Court in Virendra Gaur vs. State of Haryana22 observed that: “Enjoyment of life and its attainment including their right to life with human dignity encompasses within its ambit, the protection and preservation of environment, ecological balance free from pollution of air and water, sanitation without which life cannot be enjoyed. Any contra acts or actions would cause environmental pollution. Environmental ecological, air, water, pollution, etc. should be regarded as amounting to violation of Article 21.” 18

Gabcikovo-Nagymaros Project (Hungary/Slovakia), Judgment, I. C. J. Reports 1997, p. 7 at p. 41. 19 AIR 1985 SC 652. 20 AIR 1987 SC 1109. 21 AIR 1993 Cal. 215. 22 (1995) 2 SCC 577 at p. 580.

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It further held that: “Environmental protection, therefore, has now become a matter of grave concern for human existence, promoting environmental protection implies maintenance of the environment as a whole comprising the man-made and the natural environment.” In Indian Council for Enviro-Legal Action vs. Union of India,23 the Supreme Court of India, while giving importance to the Rio declaration of 1992, observed that ‘Polluter Pays Principle’ (Principle 16 of the Rio declaration) is a firm canon for environmental protection, because it is simple and practical and suits in every situation for this country. The Supreme Court of India went a step ahead and explained the concept of ‘Precautionary Principle’ and ‘Polluter Pays Principle’. In Vellore Citizens’ Welfare Forum vs. Union of India, 24 the Supreme Court of India, while deciding the case, mentioned about the Brundtland Report and other international instruments besides Articles 21, 47, 48-A and 51-A (g) of the Constitution of India and observed that the ‘Precautionary Principle’ (Principle 15 of the Rio declaration) and ‘Polluter Pays Principle’ (Principle 16 of the Rio declaration) form part of the law of the land and are indispensable characteristics of sustainable development. The Supreme Court in M.C. Mehta vs. Kamal Nath25 referred to the famous doctrine of ‘Public Trust’. The doctrine for protecting the eco-system includes natural resources such as rivers, forests, seashores, air etc. The court observed that the state and its instrumentalities are holding the natural resources as a trustee and have a duty to protect and preserve natural resources like rivers, lakes, open spaces and forests and therefore, cannot commit breach of that trust. It further held that the said resources should be for the use of common people rather than allow their use by private and commercial ownership. In M.C. Mehta vs. Union of India,26 the Supreme Court while dealing with ground water management directed the Indian Ministry of Environment & Forests to regulate and control the ground water management so that there can be maximum benefit to the entire humankind. Apart from these, there are number of cases like F.B. Taraporwala vs. Bayer India Ltd.27, M.C. Mehta vs. Union of India28 (Badkal and Surajkund 23

(1996) 3 SCC 212. (1996) 5 SCC 647. 25 (1997) 1 SCC 388. 26 (1997) 11 SCC 312. 27 (1996) 6 SCC 58. 28 (1997) 3 SCC 715. 24

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Lakes case), S. Jagannath vs. Union of India29 (Shrimp Culture case), M.C. Mehta vs. Union of India30 (Taj Trapezium Matter), Bittu Sehgal vs. Union of India 31 , N.D. Jayal vs. Union of India 32 and many others where the Hon’ble Court held that environment and development needs to progress together in the same direction walking side by side. The judiciary, while giving landmark pronouncements, makes attempt to theorize the law of sustainable development and as a result, a collection of particulars considered as a system of environmental jurisprudence is on the rise. In accomplishing this duty, national judiciaries are supported by mutual transfer of judicial decisions, information, knowledge and experience between jurisdictions. Thus, the judiciary enriches from each other’s knowledge, experience and proficiency. 33 The Courts, therefore, have integrated various international principles and doctrines, pooled together with socio-economic and liberal view for ensuring green justice as a part of environmental jurisprudence.

CONCLUSION Starting with the definition of sustainable development given by the Brundtland Commission, thousands of scholars, academicians and practitioners have phrased and endorsed their own alternative definition, meaning and description but a clear, unambiguous and fixed meaning still remains challenging. In truth, sustainable development reaps much of its quality, influence and inventiveness from its very indistinctness. The existing contest of sustainable development is to maintain a balance between heterogeneous human societies and natural environment across the world. Regardless of this creative vagueness and various interpretations, sustainable development has naturally developed a broad theme of philosophy and guidelines, based on the Brundtland Report’s definition. In the present days, the global economy has emerged and boomed and side by side problems connected to sustainable development are obtaining increased priority both at the national and international level. The global feeling of sympathy and anxiety for environment has contributed to the rapid development of international environmental law particularly after the famous Stockholm Conference of 1972. Moreover, the decisions of the national and international courts towards environmental protection and 29

(1997) 2 SCC 87. (1997) 2 SCC 353. 31 (2001) 9 SCC 181. 32 (2004) 9 SCC 362. 33 Km. Saroj Gupta, The Role of Judiciary in Promoting Sustainable Development: Need of Specialized Environment Court in India, 4(2) Journal of Sustainable Development 249 (2011). 30

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sustainable development have also influenced the growth of international environmental law. Side by side, the national courts have also developed strong environmental principles by taking a sudden intuition as part of solving a problem and help from the various international environmental conferences and declarations. After the United Nations Conference on Environment and Development (Rio Conference) in 1992, India has established its dedication towards environment protection and sustainable development through participation in various international conferences and workshops. Moreover, with incorporation of India’s environment principles into the constitution, India has registered formally as a participant or member into several multilateral environment protection and promotion treaties and agreements and has undertaken various plans of action, strategies and institutional frameworks relating to economic development, social advancement and preservation and careful management of the environment and of natural resources. As a result, various international environmental principles like principle of intergenerational equity, sustainable development, conservation of biological diversity and ecological integrity, precautionary principle, polluter pays principle and application of environmental impact assessment have not only been inserted into the domain of Indian law but have also received new interpretations as an unparallel aspect of the Indian environmental law.

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