1. SUSTAINABLE DEVELOPMENT Dr. Diganta Biswas, Assistant Professor, School of Law, Christ University, Bangalore.

2. SUSTAINABLE DEVELOPMENT According to the BRUNDTLAND REPORT "Sustainable development is development that meets the needs of the present without compromising the ability of future generations to meet their own needs. It contains within it two key concepts:  the concept of needs, in particular the essential needs of the world's poor, to which overriding priority should be given; and  the idea of limitations imposed by the state of technology and social organization on the environment's ability to meet present and future needs.“ As far as the World Bank’s understanding, Sustainable development is as described in Pic- 2

4. SUSTAINABLE DEVELOPMENT: AN INDIAN PERSPECTIVE PRECAUTIONARY PRINCIPLE POLLUTER PAY PRINCIPLE PUBLIC TRUST DOCTRINE INTERGENERATIONAL EQUITY DOCTRINE OF SUSTAINABLE DEVELOPMENT

5. CONSTITUTIONAL STATUS: The precautionary principle and the polluter pays principle have been accepted as part of the law of the land. Article 21 of the Constitution of India guarantees protection of life and personal liberty. Articles 47, 48A and 51A(g) of the Constitution are as under:Article 21 "47. Duty of the State to raise the level of nutrition and the standard of living and to improve public health. The State shall regard the raising of the level of nutrition and the standard of living of its people and the improvement of public health as among its primary duties and in particular, The State shall endeavour to bring about prohibition of the consumption except for medicinal purposes of intoxicating drinks and of drugs which are injurious to health. 48A. (g) Protection and improvement of environment and safeguarding of forests and wild life. The State shall endeavour to protect and improve the environment and to safeguard the forests and wild life of the country. 51A.(g) To protect and improve the natural environment including forests, takes, rivers and wild life, and to have compassion for living creatures."

6. PRECAUTIONARY PRINCIPLE The term ‘precautionary principle’ had its origin in the German word Vorsorgeprinzip. Though the principle had its roots in the German environmental policy, it has entered the centre-stage of the global environmental policy in the past two-and-half decades with several global environmental treaties invoking the PP for decision making. In simple terms, the PP conveys the common-sense based advice – to err on the side of caution. The principle intends to prevent harm to humans, environment, and eco-system at large. Before looking at some of the widely used definitions of the PP, it would be helpful to understand the context and rationale. There two widely referred definitions of the PP – the first one,

7. The Rio Declaration (or Agenda 21) of 1992, states that:  “In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.” The second definition is based on 1998 Wingspread Statement on the Precautionary Principle and it states (Raffensperger and Tickner, 1999):  “…When an activity raises threats of harm to human health or the environment, precautionary measures should be taken even if some cause and effect relationships are not fully established scientifically. The process of applying the precautionary principle must be open, informed and democratic and must include potentially affected parties. It must also involve an examination of the full range of alternatives, including no action. In this context the proponent of an activity, rather than the public, should bear the burden of proof.”

8. Multilateral Environmental Agreements & PP  a) Montreal Protocol on Substances that Deplete the Ozone Layer, 1987 – ‘Parties to this Protocol.. determined to protect the ozone layer by taking precautionary measures to control equitably total global emissions of substances that deplete it..’  b) The Rio Declaration on Environment and Development, 1992 – ‘in order to protect the environment the precautionary approach shall be widely applied by states according to their capabilities.’  c) Framework Convention on Climate Change, 1992 – ‘The Parties should take precautionary measures to anticipate, prevent or minimize the causes of climate change and mitigate its adverse effects.’  d) Convention on Biological Diversity, 1992 – does not directly use the term ‘precaution’ but interprets the ‘serious and irreversible’ harm referred in the Rio declaration in the context of biodiversity. It states, ‘where there is a threat of significant reduction or loss of biological diversity, lack of full scientific certainty should not be used as a reason for postponing measures to avoid or minimize such a threat.’

9.  e) The Maastricht Treaty of European Union, 1992 – ‘Community policy on the environment must aim at a high level of protection and be based on the precautionary principle, as well as on the principle that preventive action should be taken, that environmental damage should be rectified at source and that the polluter should pay.’  f) Cartagena Protocol on Bio-safety, 2000 – ‘In accordance with the precautionary approach the objective of this Protocol is to contribute to ensuring an adequate level of protection in the field of the safe transfer, handling and use of living modified organisms resulting from modern biotechnology that may have adverse effects on the conservation and sustainable use of biological diversity, taking into account risks to human health, and specifically focusing on trans-boundary movements.’  g) Stockholm Convention on Persistent Organic Pollutants (POPs), 2001 – The objective states, ‘Mindful of the precautionary approach as set forth in Principle 15 of the Rio Declaration on Environment and Development, the objective of this Convention is to protect human health and environment from persistent organic pollutants.’ This treaty operationalizes precaution with explicit reference to it in the preamble, provisions for adding POPs, and determination of best available technologies.

10.  In Vellore Citizens Welfare Forum v. Union of India, ((1996) 5 SCC 647.) the Supreme Court of India first invoked the PP. Drawing support from various Articles of the Constitution of India and arguing that the PP is part of customary international laws (and hence part of domestic laws), the Court has strongly supported the application of precautionary principle. In fact, the Court has also applied the reversal of burden of proof and demanded that the proponents of the activity must demonstrate that the activity is environmentally benign.  In AP Pollution Control Board v. Prof. M.V. Nayudu, ( 1999(2) SCC 718, the Supreme Court has reiterated its earlier stand on the precautionary principle and demanded that the burden of proof should rest with the person/entity proposing the activities (which may have harmful effects on the environment and/or human beings).

11. POLLUTER PAY PRINCIPLE The polluter pays principle is an extension of the principle of absolute liability. The principle of absolute liability is invoked regardless of whether or not the person took reasonable care and it makes him liable to compensate those who suffered on account of his inherently dangerous activity. The polluter pays principle extends the liability of the polluter to the costs of repairing the damage to the environment. The polluter pays principle broadens the ambit of the principle of absolute liability. The importance of this principle is that the damage to the environment may be remedied and this is extremely essential to sustainable development. "The polluter is liable to pay the cost to the individual sufferers as well as the cost of reversing the damaged ecology.

12. The polluter pays principle was promoted by the Organisation for Economic Cooperation and Development (OECD) during the 1970s when there was a great deal of public interest in environmental issues which resulted in demands on the Governments and other institutions to introduce policies and mechanisms for the protection of the environment. The modem day principle of polluter pays was first incorporated in Principles 21and 22 of the Stockholm Declaration, 1973. The European Charter on the Environmental and Health, 1989 and the Single European Act, 1986 made provisions for applying the polluter pays principle. The United Nations Conference on Environment and Development, 1992 in Principle 15 incorporates the polluter pays principle. More recently the member states of the Council of Europe and the European Economic Community adopted the Convention on Civil Liability For Damage Resulting from Activities Dangerous to the Environment, which specifically deals with transboundary pollution. It must be remembered that every breach of international law gives rise to an obligation to make reparations.

13. In the Oleum Gas Leak case (M.C. Mehta v. Union of India, (1987) 1 SCC 395.) this case the court affirmed the principle of absolute liability as stated in and extended it. The court laid down, "The polluter pays principle demands that the financial costs of preventing or remedying the damage caused by pollution should lie in the undertakings which cause the pollution or produce the goods that cause the pollution."

14. In the Enviro-Legal Action case [(1996) 3 SCC 212 at 215.] the Court ruled that "Once the activity carried on is hazardous or inherently dangerous, the person carrying on such activity is liable to make good the loss caused to any other person by his activity irrespective of the fact whether he took reasonable care while carrying on his activity. Consequently the polluting industries are "absolutely liable to compensate for the harm caused by them to villagers in the affected area, to the soil and to the underground water and hence, they are bound to take all necessary measures to remove sludge and other pollutants lying in the affected areas". Remediation of the damaged environment is part of the process of "Sustainable Development" and as such polluter is liable to pay the cost to the individual sufferers as well as the cost of reversing the damaged ecology.

15. In the case of Vellore Citizens Welfare Forum v. Union of India, ((1996) 5 SCC 647.) In this case tanneries and other industries in the state of Tamil Nadu were discharging untreated effluents into the agricultural fields, roadsides, waterways and open lands. roadsides, waterways and open lands. The untreated effluents were finally discharged into the River Palar, which was the main source of water supply to the residents of that area. In this decision we see that the two principles, namely, the “Polluter Pays” and the “Precautionary” principles were further applied into the fabric of environmental law in India. Here, in this case, the Court not only ordered the compensation of the affected parties, but also directed the creation of a fund in order to reverse the damage already caused by the polluting tanneries. The fund was intended to restore status quo, as regards the condition of the environment, which would have further deteriorated in the absence of intervention by the Supreme Court.

16. PUBLIC TRUST DOCTRINE Professor Joseph Sax had exhumed the concept of public trust and the California Supreme Court soon extended in its famous Mono Lake Case, 13 ELR 10109 (1983). The concept of the doctrine has been borrowed from the U.S. Supreme Court’s nineteenth century decision in Illinois Central Railroad v. Illinois, 146 U.S. 387 (1892). The said decision had been employed by courts in Wisconsin, Massachusetts, and California to guard against the privatization of important public resources, like parks, submerged lands, and wetlands. In India, the Supreme Court in M C Mehta v. Kamal Nath, (1997) 1 SCC 388 applied Public Trust Doctrine in regard to the protection and preservation of natural resources. In this case, the State Government granted lease of riparian forestland to a private company for commercial purpose. The purpose of the lease was to build a motel at the bank of the River Beas.

17. A report published in a national newspaper alleged that the motel management interfered with the natural flow of the river in order to divert its course and to save the motel from future floods. The Supreme Court initiated suo motu action based on the newspaper item because the facts disclosed, if true, would be a serious act of environmental degradation. The court observed: As rivers, forests, minerals and such other resources constitute a nation's natural wealth. These resources are not to be frittered away and exhausted by any one generation. Every generation owes a duty to all succeeding generations to develop and conserve the natural resources of the nation in the best possible way. It is in the interest of mankind. It is in the interest of the nation. Thus, the Public Trust doctrine is a part of the law of the land. The court also ruled that there is no any justifiable reason to rule out the application of the Public Trust Doctrine in all ecosystems in India.

18. BALCO Employees’ Union (Regd.) vs. Union Of India, 2002(2) SCC 333. In this case, it was made clear in this decision that the question whether to have an infrastructural project or not and what is the type of project to be undertaken and how it has to be executed, are part of policy making process and the courts are ill equipped to adjudicate on a policy decision so undertaken. However a note of caution was struck that the courts have a duty to see that in the undertaking of a decision, no law is violated and people’s fundamental rights as guaranteed under the constitution are not transgressed upon except to the extent permissible under the constitution. When a law has been enacted in relation to protection of environment and such law is being given effect to and there is no challenge to such law, the duty of the courts would see that the government and the other respondents act in accordance with law.

19. INTER-GENERATIONAL EQUITY In State of Himachal Pradesh vs. Ganesh Wood Products, 1995(6) SCC 363) A writ petition was filed by Ganesh Wood Products against the decision of the Government of the State of Himachal Pradesh to refuse the establishment of katha factories in the State. The Government submitted that such establishment would lead to indiscriminate felling of the so called khair trees which would have a deep and adverse effect upon the environment and ecology of the State. The Supreme Court hence, emphasized that during the years of 1992 and 1993 every proposed factory using khair trees was approved by the State authority in charge. This was contrary to public interest involved in preserving forest wealth, maintenance of environment and ecology and considerations of sustainable growth and inter-generational equity. After all, the present generation had no right to deplete all the existing forests and leave nothing for future generations. The Court here analyzed the doctrine of promissory estoppel and applied it to the case. It held that the rule being an equitable doctrine, it had to be moulded to suit the particular situation. If the equity demanded that the promissory was allowed to resile and the promisee was compensated appropriately, that ought to be done. If, however, equity demanded, in the light of the things done by the promisee on the faith of the representation, that the promissory should be precluded from resiling and that he should be held fast to his representation, that should be done.

20. In Centre for PIL v. Union of India (2012) 3 SCC 1 : (2012) 2 SCALE 180, the Supreme Court sated, even though there is no universally accepted definition of natural resources, the same can be understood as naturally occurring elements which have an intrinsic utility. They may be renewable or non renewable. The court inter alia further held that-  Natural resources belong to the people but the State legally owns them on behalf of its people and from that point of view natural resources are considered as national assets, more so because the State benefits immensely from their value.  The State is empowered to distribute natural resources. However, as they constitute public property/national asset, while distributing natural resources the State is bound to act in consonance with the principles of equality and public trust and ensure that no action is taken which may be detrimental to public interest.  As natural resources are public goods, the doctrine of equality, which emerges from the concepts of justice and fairness, must guide the State in determining the actual mechanism for distribution of natural resources.

21. DOCTRINE OF SUSTAINABLE DEVELOPMENT In Gabčíkovo - Nagymaros Dams [Danube Dam case (1997) Hungary/Slovakia, No. 97/10 bis of 25 September 1997, the Court expressed its concern over the issue of environmental protection, vigilance and prevention which are often irreversible character of damage to the environment and of the limitations inherent in the very mechanism of reparation of this type of damage. Throughout the ages, mankind has, for economic and other reasons, constantly interfered with nature. In the past, this was often done without consideration of the effects upon the environment. Owing to new scientific insights and to a growing awareness of the risks for mankind - for present and future generations - of pursuit of such interventions at an unconsidered and unabated pace, new norms and standards have been developed, set forth in a great number of instruments during the last two decades. Such new norms have to be taken into consideration, and such new standards given proper weight, not only when States contemplate new activities but also when continuing with activities begun in the past. This need to reconcile economic development with protection of the environment is aptly expressed in the concept of sustainable development.

22. In N.D. Jayal vs Union of India (2003)Therefore, the adherence of sustainable development principle is a sine qua non for the maintenance of the symbiotic balance between the rights to environment and development. Right to environment is a fundamental right. On the other hand right to development is also one. Here the right to ’sustainable development’ cannot be singled out. Therefore, the concept of ’sustainable development’ is to be treated an integral part of ’life’ under Article 21. The weighty concepts like intergenerational equity (State of Himachal Pradesh v. Ganesh Wood Products, ), public trust doctrine (M.C. Mehta v. Kamal Nath,) and precautionary principle (Vellore Citizens), which we declared as inseparable ingredients of our environmental jurisprudence, could only be nurtured by ensuring sustainable development.