Sustainable Development as a Rule of Indian Law

Intergenerational equity. The present generation holds the environment in trust for those who come after.

The precautionary principle. Uncertainty is resolved in favour of protection, with the burden on the developer.

The polluter pays principle. The cost of pollution, including restoration, falls on the polluter.

The use and conservation of natural resources. Resources are to be used efficiently and conserved, not exhausted.

The obligation to assist and cooperate. Between States, and within a federation between the Union and the States.

Eradication of poverty. The Indian formulation insists on this, and it is the point on which Indian courts differ most from Western writing. Development is not the enemy of the environment where the alternative is destitution.

Environmental impact assessment. The procedural expression of the concept: a project is examined for its effects before it is permitted.

The balancing in practice

Facts. In Narmada Bachao Andolan v. Union of India, AIR 2000 SC 3751, the height of the Sardar Sarovar dam and the adequacy of resettlement were challenged after construction had begun.

Held. By majority the Court allowed construction to the sanctioned height subject to staged clearance by a relief and rehabilitation subgroup. It held that where the effect on ecology or the environment of a project is known, what has to be seen is whether the environment is likely to suffer and whether such damage can be prevented or contained by taking suitable steps, and that in such a case it is the principle of sustainable development, which ensures that mitigative steps are taken, that applies, the precautionary principle being for cases where the effect is not known.

Why it matters here. It shows the balance struck the other way, and it contains the Court's own limit on the precautionary principle.

Facts. In Essar Oil Ltd v. Halar Utkarsh Samiti, AIR 2004 SC 1834, a pipeline was to be laid through a marine national park in the Gulf of Kutch.

Held. Permission was upheld on conditions, the Court observing that the object of environmental legislation is not to prohibit development but to balance it, and that there need not necessarily be a deadlock between development and the environment.

Why it matters here. It is the clearest statement that the doctrine is a balance and not a preference.

Facts. In N.D. Jayal v. Union of India, AIR 2004 SC 867, the safety of the Tehri dam and the adequacy of rehabilitation were challenged.

Held. The Court held that the right to a clean environment is a fundamental right and that the right to development has also been treated as a component of Article 21, that adherence to sustainable development is a sine qua non for the maintenance of the symbiotic balance between the rights to environment and to development, and that sustainable development is to be treated as an integral part of life under Article 21.

Why it matters here. It is the strongest statement that development itself is a right protected by Article 21, which is the half of the balance students usually omit.

Worked example

A State proposes a four-lane highway through twenty-two kilometres of a reserved forest, cutting nine thousand trees. It will shorten a route by fifty-one kilometres and serve four districts.

What the doctrine requires. Not a preference for either side. It requires that the environmental cost be identified, that alternatives be examined, that the least harmful option be adopted, that the residual harm be compensated, and that the decision be taken by the body the law entrusts with it on adequate material.

What that means concretely. An impact assessment; an examination of realignment and of an elevated corridor; compensatory afforestation on a stated ratio; wildlife crossings if the forest is a corridor; a monitoring condition; and a reasoned decision by the appraisal committee.

What a court will do if challenged. Examine whether that process was gone through, not whether the highway is a good idea. If the alternatives were never examined, the clearance falls. If they were, it stands.

What it does NOT mean

It does not mean development must yield. Essar Oil and Narmada both say the opposite.

It does not mean the environment must yield to employment. The Kanpur Tanneries case rejected that in terms.

It does not decide cases by itself. It is a framework: the operative work is done by the precautionary principle, the polluter pays principle and the impact assessment procedure. A judgment that says only that sustainable development requires a balance has decided nothing.

It is not confined to international law. It is part of the law of the land as customary international law, and it is now a statutory obligation of the National Green Tribunal under section 20 of its Act.

Limits and criticism

It is indeterminate. A concept that requires the reconciliation of two incommensurable goods gives no answer in a hard case. Both sides of every environmental dispute cite it.

It has been used to legitimate. Because the doctrine assumes development is legitimate, an authority that has performed the procedure can invoke it to justify almost any project.

Its features are not settled. The Supreme Court itself said in Vellore Citizens that the salient features had yet to be finalised, and different judgments list different features.

The honest defence is procedural. The doctrine's real work is that it requires the environmental cost to be identified and considered before the decision is taken, by a body obliged to consider it. That is a modest achievement and it is a real one, and it is what the impact assessment regime in Module IV exists to deliver.

Quick revision

• Brundtland Report 1987: development meeting present needs without compromising the ability of future generations to meet theirs.
• Rio Principles 3 and 4; Indian law through Vellore Citizens (1996), as customary international law and hence the law of the land.
• Features: intergenerational equity, precaution, polluter pays, conservation, cooperation, poverty eradication, impact assessment.
• Narmada (2000): where the effect is known, sustainable development with mitigative steps applies, not the precautionary principle.
• Essar Oil (2004): the object is to balance, not to prohibit. N.D. Jayal (2004): development is itself part of Article 21.
• Now a statutory duty of the National Green Tribunal under section 20 of the Act of 2010.

Test yourself

1. Give the Brundtland definition and say how it became part of Indian law. Sustainable development is development that meets the needs of the present without compromising the ability of future generations to meet their own needs. It became Indian law in Vellore Citizens Welfare Forum v. Union of India, where the Supreme Court held that it had been accepted as part of customary international law and was therefore part of the law of the land, and that the precautionary principle and the polluter pays principle are its essential features and are part of the environmental law of the country.

2. Narmada was decided against the objectors. Does that contradict Vellore Citizens? No. Vellore Citizens made sustainable development a balancing concept; it did not make it a rule that the environmental side wins. In Narmada the Court held that where the effect of a project on the environment is known, the question is whether the damage can be prevented or contained by suitable steps, so the principle of sustainable development, with mitigative steps, applies rather than the precautionary principle, and that it would not sit in appeal on a considered policy decision of the Government.

3. What is the strongest criticism of the doctrine, and the best answer to it? That it is indeterminate: it requires two incommensurable goods to be reconciled and gives no rule for doing so, so both sides in every dispute rely on it and it decides nothing. The best answer is procedural. Its real content is that the environmental cost must be identified, alternatives examined and the least harmful option chosen, by the body the law entrusts with the decision and on adequate material. That is what the impact assessment regime enforces, and it is a real constraint even though it does not dictate the outcome.