Author: Anshu Bansal, Research Associate
“When we talk about environmental justice, we mean calling a halt to the poisoning and pollution of our poorest communities, from our rural areas to our inner cities. When our children’s lives are no longer cut short by toxic dumps, when their minds are no longer damaged by lead paint poisoning, we will stop wasting energy and intelligence that could build a stronger, more prosperous Nation.” -Former US President Bill Clinton
The concept of sustainable development came up as a result of various environmental movements which have taken place in past few decades. In the international arena, Sustainable Development came to be known for the first time in the Stockholm Declaration of 1972. It was first defined by World Commission on Environment and Development ((Brundtland Commission, 1987.))in 1987 as ‘Development that meets the needs of the present generations without compromising the ability of future generation s to meet their own needs’. The word ‘sustainability’ does not imply mere environmental sustainability rather it includes economic, social and equitable idea as well. Hence, it would be a grave mistake, if sustainability is seen with a narrow lens of environmental sustainability. The concept of sustainable development implies limits but not absolute limits.
The core problem lies in the understanding of the issue. Often we tend to equate the issue of sustainable development with the age-old conflict between People versus Nature but in fact, the conservation perspective speaks that primarily sustainable development addresses People versus People conflict. Few people tend to rule over the vast natural resources while others are devoid of its benefit. As a result, these poor persons not for luxury but for survival do further environmental degradation. According to United Nations Human Development Report, 1998 20% of the world’s people in the highest-income countries account for 86% of total private consumption expenditures , the poorest 20% a minuscule 1.3%. This shows that inequality of consumption and concentration of wealth in fewer hands is the major barrier in the road of sustainable development.
NEED FOR SUSTAINABLE DEVELOPMENT
In order to understand and come up with the solutions, it is pertinent to understand why do we need to go for sustainable development? Why at all we should compromise with our development? The answer to these questions lies in the understanding that we all are interdependent on each other and each one of us depends on nature and ecosystem’s services. In order to satisfy our need, want and desire, we have made an unprecedented changes in the recent years to the level that it weakened the nature’s ability to deliver key services such as pure water and air, protection from natural disasters, naturally healing power of medicine etc. ((The Millennium Ecosystem Assessment (March 2005).))Hence, we need to devise a mechanism for balancing the conflicting interest between development and sustainability. Development is not possible without properly managing environment. It is crucial to regenerate the environment for development.
Pressure on resources increases with the lack of alternatives to the people. Development policies must widen people’s options for earning a sustainable livelihood, particularly for resource-poor households and in areas under ecological stress ((Jaime Da Silva Araujo, Rubber Tapper Council, WCED Public Hearing Sao Paulo 28-29 (Oct 1985).)). For this, reorientation of technology is required which will serve as the key link between humans and nature. First, the capacity for technological innovation needs to be greatly enhanced in developing countries so that they can respond more effectively to the challenges of sustainable development. Second, the orientation of technology development must be changed to pay greater attention to environmental factors ((Ismid Hadad Chief Editor, Prisma WCED Public Hearing Jakarta ( 26 March 1985).)).
SUSTAINABLE DEVELOPMENT AND ENVIRONMENTAL JUSTICE AND BEYOND
It is not that there is one class of villains and another class of sufferers. The problem is that each one of us expects other to behave in a socially desirable fashion without doing the same on our part. In order to fill this gap, well enforced laws and strict liability principles are required. In recent years, there has been a prolonged focus on the function that is played by the higher judiciary in devising and scrutinizing the implementation of measures related to sustainable development. Nevertheless, we all know that higher judiciary is over burdened with numerous pending cases. Therefore, there was an urgent requirement for alternative forum where speedy justice could have been done for pending cases related to environment. The Apex Court opined that it would be desirable to have the setting up of environmental courts on the regional basis with a professional judge and two experts drawn from the Ecological Science Research Group ((M.C. Mehta v. Union of India, AIR 1987 SC 965-967.)). Some of the prominent jurists of the country expressed a similar view ((U Baxi, Environmental Protection Act: An Agenda for Implementation, 10(1987); G Sadasivam Nair, Environmental Offence: Crime Against Humanity, in P Leela krishnan Law & Environment 186 (1992).)). India remains a small minority, following New Zealand and Australia, to approve Green Court legislation. It must be noted that the Indian Parliament enacted the National Green Tribunal Act, 2010 to provide for a forum for efficient and expeditious disposal of cases arising from any calamity occurring while handling any dangerous substance. All these steps are taken to promote sustainable development.
In order to further the cause of sustainable development and to bring equality, the above said Act provides for two important principles among other things. They are Polluter pays principle and Precautionary principle. The former was originally declared in the Brundtland Report in 1987. This principle was also adverted to in Indian Council for Enviro-legal Action vs. Union of India ((1996(3) SCC 212.)). In this case, the court held that once a dangerous activity is carried out, the one who caused it will be held liable even though reasonable precautions were taken by him. In the case of Vellore Citizens’ Welfare Forum v. Union of India ((1996(3) SCC 212.)), the court interpreted this principle as absolute liability to harm the environment does not extend only to compensate the victim, but the liable person will also have to restore the environment degradation. Recently, The SC has imposed a fine of Rs 100 Crore on Sterlite, for causing environmental pollution in Tuticorin in Tamil Nadu ((The Hindu, April 2, 2013 available at last accessed on June 9, 2013 at 7:36 PM)).
The precautionary principle had its origin in the mid-1980s from the German Vorsorgeprinzip ((LR 3 H.L. 330.)). Various foreign courts have accepted this principle and have been incorporated in their statutes ((It has been accepted by the European Court of Human Rights and applied by WTO Dispute Resolution Bodies, the International Tribunal for the Law of the Sea, the European Community Law. National legislations in the EC Member States (Germany, France, Belgium, Sweden) have adopted it. It is applied in UK because of Art 174 (2) of EC Treaty. It is applied also by US Courts and in Australia.)). The Supreme Court of India, in the case of Vellore Citizens’ Welfare Forum v. Union of India ((1996(5) SCC 647.))referred to the precautionary principle and declared it to be part of the customary law in our country. Both these principles are playing a pivotal role in order to provide for sustainable development. In the case of Research Foundation for Science Technology v Union of India (( S.C. 890.)), the SC gave notice to the offender to answer ‘why they should not be directed to pay compensation on the basis of the polluter pays principle’. Further, In Narmada Bachao Andolan v Union of India ((AIR 2000 SC 3751, SC defined sustainable development as ‘what type or extent of development can take place which can be sustained by nature / ecology with or without mitigation’ ((AIR 2000 SC 3751 as per B.N Kirpal J with whom Dr A.S Anand CJI agreed.)).
In the recent decision of T.N Godavarman Thirumulpad v Union of India ((CDJ 2005 SC 713.)), the Supreme Court of India endorsed the decision in M.C Mehta v Kamal Nath (( 1 SCC 388.))stating that natural resources have a great importance to the people as a whole such that it would wholly unjustified to make them subject to private ownership. In addition to Indian cases, the award passed in Iron Rhine case correctly focused on ‘right balance’ of sustainable development in its economic and environmental form ((Arbitration regarding the Iron Rhine (“Ijzeren Rijn”) Railway between The Kingdom of Belgium and The Kingdom of the Netherlands, Award of 24 May 2005, UNRIAA XXVII 35 Published in: Cordonier Segger, M.C. [Ed.], sustainable development principles in the decisions of international courts and tribunals 1992 – 2012, (CUP 2013).)). It was said that the defendant’s actions in picking the threatened species, without prior environmental impact assessment and approval, undermined the statutory scheme and thwarted the attainment of ecologically sustainable development (( NSWLEC 34 (6 February 2006).)).
It is beyond any doubt that indeed it is high time that we need to take strict action to develop our self sustainably. Although enforced laws and strict liability legislation can control harmful side effects but law alone will not suffice if Public participation is not there. Hence, active citizen’s initiatives and strengthening local democracy is of utmost importance. Public awareness to combat the environment problem should also be there.
Instead of having numbers of legislations, we are not able to cope up with the problem. This is because the problem lies in proper interpretation and implementation. It has to be kept in mind that if the desert is growing, forest disappearing, malnutrition increasing, and people in urban areas living in very bad conditions, it is not because we are lacking resources but the kind of policy implemented by our rulers, by the elite group ((Speaker from the floor, WCED Public Hearing, Nairobi (23 Sept 1986).)). There are judges who are of the opinion that there should be green benches in every high courts rather than setting up the tribunal. This will help in speedy disposal of cases, which in turn will enhance and polish our movement towards sustainable development.
More focus is needed on developing technologies that are environment friendly. Many people believe that problem of sustainable development can wait until developing countries became richer. These mind-set needs to be changed. It is rightly said by Robert Redford ((Yosemite National Park dedication, 1985))that, “I think the environment should be put in the category of our national security. Defence of our resources is just as important as defence abroad. Otherwise what is there to defend?” It indeed makes sense in the current scenario.