Sustainable Development in Indian Law

The constitutionalisation

Facts. N.D. Jayal v. Union of India, AIR 2004 SC 867, was a challenge to the Tehri dam on the grounds that the structure was unsafe in a seismic zone and that the rehabilitation of those displaced was inadequate. The Environmental Appraisal Committee had concluded in February 1990 that the project did not merit environmental clearance; conditional clearance was granted a few months later.

Held. The Court allowed the project to proceed subject to conditions on safety and rehabilitation, and held that adherence to the principle of sustainable development is a sine qua non for the maintenance of the symbiotic balance between the right to environment and the right to development, and that the concept of sustainable development is to be treated as an integral part of life under Article 21. Both the right to a healthy environment and the right to development are components of Article 21, and neither can be sacrificed wholly to the other.

Why this is the important step. After Vellore, sustainable development was a rule of law with the status of received custom. After Jayal it is a component of a fundamental right, which means it can be enforced under Article 32, cannot be displaced by an ordinary statute, and applies to the State in everything it does rather than only in environmental litigation.

And notice the balance. Jayal puts the right to development inside Article 21 as well. That is what stops the doctrine from becoming a one-way ratchet, and it is the doctrinal source of the restraint the Court showed in the Narmada case.

The enactment

Section 20 of the National Green Tribunal Act 2010: the Tribunal shall, while passing any order or decision or award, apply the principles of sustainable development, the precautionary principle and the polluter pays principle.

Parliament thus made the application of the doctrine a statutory duty on a court, fourteen years after the Supreme Court had received it from customary international law. The chain runs: Brundtland Report, Rio Declaration, customary international law, Supreme Court, Article 21, Parliament.

Where the doctrine has actually decided

Four applications, each already met in this book.

Licensing. State of Himachal Pradesh v. Ganesh Wood Products: approvals for forest-based industry held vitiated for want of any assessment of the forest wealth that would have to feed it, and new units barred until an expert survey had been made.

Acquisition. Karnataka Industrial Areas Development Board v. C. Kenchappa: before land is acquired for development, the adverse impact on the environment must be comprehended, and clearance must be obtained before the allotment agreement is executed.

Planning regulation. Bombay Dyeing and Manufacturing Co. Ltd v. Bombay Environmental Action Group: the doctrine applied to the regulation governing the redevelopment of Mumbai's mill lands, and the regulation passed. The High Court had read it down so that more land would be surrendered for open space and public housing; the Supreme Court set that aside and held the regulation, as inserted in 2001 and clarified in 2003, "not contrary to the principles governing environmental aspects including the principles of sustainable and planned development". The doctrine is a test that a decision can pass as well as fail.

Quantity. Goa Foundation v. Union of India: annual extraction capped pending an expert study of carrying capacity, with a share of the proceeds to a permanent fund.

What the doctrine still does not do

It does not decide a case by itself. Vellore closed tanneries; Narmada allowed a dam; both applied the same doctrine.

It supplies no weighting. No judgment has said how much environment a given quantity of development is worth.

It has no independent remedy. It operates through Articles 32 and 226 and through the Tribunal's statutory powers.

Worked example

A hydroelectric project will submerge four thousand hectares including two villages, will supply power to three districts, and stands in a seismic zone. A petition challenges the clearance on the ground that it is not sustainable development.

The first thing to get right. Sustainable development is not a synonym for environmental protection. On N.D. Jayal v. Union of India, both the right to a healthy environment and the right to development are components of Article 21, and neither can be sacrificed wholly to the other, adherence to sustainable development being a sine qua non for the balance between them and the concept being an integral part of life under Article 21.

So the petition cannot succeed merely by proving loss. Every project causes loss. The question is whether the balance was struck properly.

What the court will actually examine, and each item is a doctrine from this module.

Was the assessment honest? On Hanuman Laxman Aroskar, an assessment which does not disclose material facts vitiates the clearance, and the process is due diligence rather than a formality.

Was the risk addressed on precautionary terms? The seismic question is one of scientific uncertainty, and on Vellore and Nayudu the onus lies on the developer to show that the action is environmentally benign, uncertainty being no reason to permit a hazardous activity.

Were the displaced provided for? On Narmada Bachao Andolan v. Union of India, displacement does not by itself violate Article 21 where the displaced are properly resettled, and the Court allowed the dam to rise only pari passu with the implementation of relief and rehabilitation, monitored by named authorities.

Was the future accounted for? Intergenerational equity, on Ganesh Wood Products, and the Goa Foundation mechanism of a ring-fenced fund.

Does the polluter pay for what cannot be avoided? Restoration, on Vellore, and not merely compensation.

And what the court will not do. On Narmada, once a considered policy decision has been taken by the Government the court should not sit in appeal over it.

The order that results. Not a refusal and not an approval, but conditions: staged construction tied to rehabilitation, independent seismic review, catchment treatment, and continuing supervision. That is what sustainable development looks like when a court applies it, and it is why the phrase is a method rather than an outcome.

Quick revision

• Three routes into Indian law: received as customary international law in Vellore; constitutionalised as an integral part of life under Article 21 in Jayal; enacted in section 20 of the National Green Tribunal Act 2010.
• The Vellore reasoning has three steps: the concept is customary international law; customary international law is part of Indian law where not inconsistent; and nothing in Indian law is contrary to these principles.
• Jayal is the important step: after it, sustainable development is a component of a fundamental right, and so is the right to development, which stops the doctrine from running one way only.
• Applications: licensing in Ganesh Wood Products, acquisition in Kenchappa, planning regulation in Bombay Dyeing, where the regulation was upheld, and quantity in Goa Foundation.
• The chain to remember: Brundtland, Rio, customary international law, the Supreme Court, Article 21, Parliament.

Test yourself

1. Set out the three steps by which the Supreme Court brought the precautionary and polluter pays principles into Indian law.

That sustainable development, and those principles as its essential features, had been accepted as part of customary international law; that customary international law is part of Indian law where it is not inconsistent with domestic law; and that nothing in Indian law is contrary to those principles. The consequence is that no legislation was needed to make them enforceable.

2. Why is N.D. Jayal a more important step than Vellore?

Because Vellore made sustainable development a rule with the status of received custom, whereas Jayal held it to be an integral part of life under Article 21. As a component of a fundamental right it is enforceable under Article 32, cannot be displaced by an ordinary statute, and binds the State in everything it does rather than only in environmental litigation.

3. What does Jayal say about the right to development, and why does that matter?

That both the right to a healthy environment and the right to development are components of Article 21, and that adherence to sustainable development is a sine qua non for maintaining the symbiotic balance between them. It matters because it prevents the doctrine from operating as a one-way restriction on development, and it is the doctrinal source of the restraint the Court showed in the Narmada case.

4. Give four points in a development process at which the doctrine has actually decided something in India.

At licensing, in Ganesh Wood Products, where approvals granted without an assessment of the forest wealth were held vitiated and new units were barred pending a survey. At acquisition, in Kenchappa, where clearance was required before the allotment agreement was executed. At the level of planning regulation, in Bombay Dyeing, where the Supreme Court tested Mumbai's mill-land regulation against the doctrine, set aside the High Court's reading down and upheld it. And at the level of quantity, in Goa Foundation, where extraction was capped pending a carrying capacity study.