NATIONAL LAW UNIVERSITY ODISHA

Environmental Law Project on:

Significance of sustainable development in Indian Environmental

Jurisprudence

Submitted to:

Ms. Nikita Pattajoshi

(Assistant Professor of Law)

Ms. Anurupa Chetia

(Research Associate cum Teaching Assistant)

Submitted by:

AARATRIKA BAL (17 / B.A.L.L.B. / 001)

SHINJINI MITRA (17/ B.A.L.L.B. / 092)

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 CONTENTS

PAGES
INTRODUCTION 3

ROLE OF JUDICIARY AND PRECEDENTS ON THE TERM SUSTAINABLE DEVELOPMENT 6

NGT’S JURISPRUDENCE OF THE TERM SUSTAINABLE DEVELOPMENT 9

CONCLUSION 14

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 INTRODUCTION

The historical development “of the idea saw investment of different associations and
organizations, which these days work strongly on the execution of its standards and targets.
The idea has encountered various critiques and translations throughout the time while being
acknowledged in various regions of human movement, and the meaning of manageable
improvement has gotten perhaps the most referred to definitions in the writing. In its turn of
events, the idea has been adjusting to the contemporary prerequisites of a complex worldwide
climate, however the basic standards and objectives, just as the issues of their execution,
remained practically unaltered.” In any case, a few objectives have been refreshed, and the
new objectives were set. These objectives are joined in the system of the Millennium
Development Goals 2015 which layout the difficulties that mankind needs to battle not only
to accomplish sustainable development but also to survive on Earth too1.

The term sustainable development was instituted during “the Cocoyoc Declaration on
Environment and Development in the beginning of 1970's. Since then, it has become an
exchange characteristic of worldwide association devoted to accomplishing advantageous
turn of events. In the year 1972, the Stockholm Convention used the word sustainable
development and expressed its views that2:

“Man has the fundamental right to freedom, equality and adequate conditions of life, in an
environment of a quality that permits a life of dignity and wellbeing and he bears a solemn
responsibility to protect and improve the environment for present and future generation–.”

There had been various international conferences based on sustainable development. The first
one “dates back to  United Nations Conference on the Human Environment, held in Stockholm,
Sweden, in 1972. During this conference, the Stockholm Declaration and Plan of Action was
adopted. This also came up with various rules and regulations in order to preserve the human
environment. United Nations Environment Programme (UNEP) was also set up at the same time.
The next international conference was the Earth Summit in Rio de Janeiro, Brazil in the year 1992.
This introduced the Rio Declaration and Agenda 21. A  Special Session of the General
Assembly devoted to the environment examined and analysed the implementation of Agenda 21
in 1997. In 2000, the Millennium Development Goals were established. n 2002, the World
1
‘Sustainable Development’,<http://www.legalserviceindia.com/legal/article-3842-sustainable-
development.html#:~:text=The%20term%20sustainable%20development%20was,to%20meet%20their%20own
%20needs.>, accessed 3 April 2021
2
‘Concept of Sustainable Development - An Indian Perspective’, <https://www.biyanicolleges.org/concept-of-
sustainable-development-an-indian-perspective/>, accessed 3 April 2021

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Summit on Sustainable Development in Johannesburg gave birth to a new Action Plan.
In 2005, 2008, and 2010 the Millennium Development Goals were reviewed at high level
meetings in New York. This was followed in 2012, in Rio, by the United Nations Conference on
Sustainable Development,” also called Rio + 203.

Albeit “numerous definitions flourish, the frequently utilized meaning of sustainable

development is that proposed by the Brundtland Commission. This expansive definition,
which will be utilized in this exposition, doesn't restrict the extent of the concept of SD. The
clarification does address the significance of inter-generational value. This idea of rationing
assets for people in the future is one of the significant highlights that recognize sustainable
development strategy from traditional natural approach, which additionally looks to disguise
the externalities of ecological debasement.” The overall goal of sustainable development
(SD) is economic development and stability and controlling climate in order to be able to
help growth and sustainability of upcoming generations.4

There are some principles mentioned in the Brundtland report. First principle is
intergenerational equity. As per Principle 3 of the Rio declaration, “The right to development
must be fulfilled so as to equitably meet developmental and environmental needs of present
and future generations.” The guideline discusses the privilege of each generation to get
advantage from the normal assets. The fundamental item behind the guideline is to guarantee
that the current age ought not exploit the non-sustainable assets in order to deny the next
generation to come of its advantage. The second principle is the precautionary principle. This
is mentioned under Principle 15 of the Rio declaration. It says: “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.” This principle is one of the most important principles. This
guideline additionally recognizes the various contributions to natural corruption by developed
as well as developing nations, while valuing future needs of these less evolved nations. The
third principle is the polluter pays principle. This concept is mentioned under Principle 16 of

3
‘Conferences on the environment and sustainable environment’,
<https://www.un.org/en/conferences/environment#:~:text=BACKGROUND,the%20issue%20of%20the
%20environment.>, accessed 3 April 2021
4
Rachel Emas, ‘The Concept of Sustainable Development: Definition and Defining Principles’ (2015),
<https://sustainabledevelopment.un.org/content/documents/5839GSDR
%202015_SD_concept_definiton_rev.pdf>, accessed 5 April 2021

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the Rio Summit that says, “National authorities should endeavour to promote the
internalization of environmental costs and the use of economic instruments, taking into
account the approach that the polluter should, in principle, bear the cost of pollution, with due
regard to the public interest and without distorting international trade and investment.”

The indistinct object of the polluter pays principle was to brand the polluter responsible to
compensate the victims as well as to pay expense and re-establish the ecological debasement.
When the actor ends up being blameworthy, he is obligated to make up for his demonstration
unessential of the way that if he's associated with improvement measure. Except these three,
there are various other principles as well like: “Use and conservation of natural resources;
Environmental protection; Principle of liability to help and co-operate; Poverty eradication;
and Principle of ‘public trust’.5”Public trust doctrine postulates resources like the land,
forests, air and water etc. are so essential to the entire mankind, that it would be unjustified to
claim it as individual or private property.6

5
Kavita Kait, ‘Sustainable Development, Guiding Principles and Values’,
<http://www.legalservicesindia.com/article/1641/Sustainable-Development,-Guiding-Principles-And-
Values.html#:~:text=The%20principle%20of%20sustainable%20development%20emphasises%20on%20two
%20basic%20needs,the%20present%20and%20future%20requirements.>, accessed 6 April 2021
6
Atisha Sisodiya, ‘The Role of Indian Judiciary in Protection of Environment in India’ (2015),
<https://www.lawctopus.com/academike/role-indian-judiciary-protection-environment-india/#_ednref10>,
accessed 6 April 2021

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 ROLE OF JUDICIARY AND PRECEDENTS ON THE TERM SUSTAINABLE
DEVELOPMENT

The judiciary plays an essential role in building the jurisprudence of sustainable

development. The work of elucidating the law of sustainable development, by deciding one
case at a time is primarily done by the courts. “Judiciary is playing the vital role in the
protection of environment. One of the main developments in the Indian Judiciary is the
Public Interest Litigation. It is the new jurisprudence and is called ‘Jurisprudence of Masses’.
The role of Indian Supreme Court in resolving environmental disputes has contributed
immensely to the evolution of environmental jurisprudence and principles in India. Various
provisions have been introduced by the Indian Constitution in order to protect and preserve
our environment. India additionally has credit to be the primary country which made
arrangements for the assurance and improvement of climate in its Constitution. Via 42nd
amendment to the Constitution in year 1976, Article 48-A which explicitly manages
environment security and its enhancements in a few ecological cases the Indian courts
likewise guided by the language of this. Article 51A(g) casts obligation on the residents of
the country for assurance of climate. Indian Parliament additionally passed different laws
affecting and controlling the ecological issues. Authoritative establishments were consistently
trying to match up with the standards of financial, social and sustainable development. Every
person has a right to live in a clean and healthy environment.” India being a developing
economy has seen widespread industrialisation and improvement in ongoing past, which
brought about antagonistic effect on the climate. Seeing such debasement, the Supreme Court
of India in a bid to ensure the climate, assumed a critical part in forming and embracing the
tenet of Sustainable Development.

This campaign for defending the climate was driven by Justice Kuldip Singh, who broadly
came to be known as the” “Green Judge” 7 . According to Justice Kripal, “Article 142
afforded the Supreme Court considerable power to mould its decisions in order that complete
justice could be done.” These judicial statements have given new jurisprudence and
dimension to environmental protection by approving the doctrine of Sustainable
Development. The Supreme Court of India has made immense contribution to environmental
jurisprudence of our country8.
7
Pragya Ohri, “Need For Sustainable Development” (2017), &lt;https://www.mondaq.com/india/clean-air-
pollution/559702/need-for-sustainable-development&gt;, accessed 13 April 2021
8
Nagendra Prasad Kandwal, ‘Role of Supreme Court in Sustainable Development of Environment and its

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There are “few important cases related to the concept of sustainable development. The first
one is Vellore Citizen Welfare Forum v. Union of India9. In this case, the teaching of
Sustainable Development was carried out interestingly by the Supreme Court. The Petitioners
had documented an appeal in public interest litigation against the contamination brought
about by release of untreated emanating by the tanneries and different ventures in the stream
Palar in the State of Tamil Nadu. The Supreme Court held that the precautionary principle
and polluter pays principle are parts of the environmental law of India.” The court likewise
held that: “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.” The judgment denoted all endeavours to keep
a concordance among climate and improvement. Be that as it may, before Vellore Citizen's
case, the Supreme Court has much of the time attempted to keep a harmony among
environment and development.

In the case of T.N. Godavaraman Thirumulpad v. Union of India 10 , the main purpose of the
writ petition was to protect illegal timber trade in the Nilgiris. It was held by the court that,
“Directives had to be issued to use the forest and its resources sustainably. And also told that
it should incorporate a self-monitoring mechanism at the same time.” Thus, importance has to
be given to both environment and development of economy. The Supreme Court has given
loads of judgements regarding deforestation as well11 , which is one of the major factors
behind exploitation of the environment. One of such significant cases is Ambika Quarry
Works v. State of Gujarat12. In this case, the Supreme court was trying to come to a mid-
ground where mineral sources within the forests had to be exploited and also the environment
had to be protected. It was noticed that “The rejection of prayer for the renewal of lease was
in conformity of the purposes of the Act of preventing deforestation and ecological
imbalances resulting from deforestation.” Thus, to bring a balance sustainable development
came into action.

protection in India (To Study of Uttarakhand State)’ (2017), <https://essence-journal.com/wp-

content/uploads/Volume_VIII/Issue_1/Role-of-Supreme-Court-in-Sustainable-Development-of-Environment-
and-its-protection-in-India.pdf>, accessed 7 April 2021
9
Vellore Citizen Welfare Forum v. Union of India [1996] AIR 2715 (SC)
10
T.N. Godavaraman Thirumulpad v. Union of India [1995] WP (Civil) No. 202
11
“Sustainable Development and Law” (2020),
< http://www.legalservicesindia.com/law/article/1369/30/Sustainable-Development-and-Law >, accessed 13
April 2021
12
Ambika Quarry Works v. State of Gujarat [1987] AIR 1073 (SC)

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Another important case is the Indian Council of Enviro-Legal Action v. Union of India 13.
“The SC found the need in setting up specific climate courts to successfully and decide in a
quick manner of cases including environmental issues, since the privilege to sound climate
has been interpreted as a part of right to life under Article 21 of the Constitution.” The Apex
court held, “while economic development should not be allowed to take place at the cost of
ecology or by causing widespread environment destruction and violation; at the same time,
the necessity to preserve ecology and environment should not hamper economic and other
developments.”

In the case of Narmada Bachao Andolan v. Union of India14, it was considered “Sustainable
development meant what type or extent of development can take place, which can be
sustained by nature/ecology with or without mitigation.” In other words, development mainly
referred to economic and material improvement.

“Another important case is the MC Mehta v. Union of India 15, also known as the Oleum Gas
leak case. “The essential issue in this case was the extent of Article 21 and 32 of the
Constitution. For this situation Supreme Court set up the rule of absolute liability. it likewise
held that assuming any harm is caused because of perilous or risky action, the victim is
obligated to be redressed and compensated. Further, the Court likewise saw that the case for
remuneration under Article 21 is supportable. In regard to Article 32 the Court saw that the
ambit of Article 32 is very wide and it permits the Courts to constrain new cures and to
formulae new techniques to implement fundamental right. The principle of “public trust
doctrine” was introduced in the case of MC Mehta v. Kamal Nath & ors.16”

13
Indian Council of Enviro-Legal Action v. Union of India [1996] 3 SCC 212
14
Narmada Bachao Andolan v. Union of India [2000] AIR 3751 (SC)
15
MC Mehta v. Union of India [1987] AIR 965
16
MC Mehta v. Kamal Nath & ors. [1997] 1 SCC 388

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 NGT’S JURISPRUDENCE OF THE TERM SUSTAINABLE DEVELOPMENT

The new movement associated with Environment Jurisprudence is “environmentalism”. No

new plan or policy is verified or admitted without assessing the environmental impact. Any
new ideology requires a pragmatic political dimension inclusive of change and a proper
political programme. “As environmental politics has become more mainstream, so
environmental activism has become increasingly reconciled to reformist strategies, which
work within the legislative” process17. The Supreme Court constantly reiterated and ensured
that the concept of Sustainable Development was engraved into the legislations of Indian
Environmental Law Regime. Different policies like National Forest Policy 1988, National
Conservation Strategy and Policy Statement on Environment and Development (both in
1992), National Agricultural Policy 2000 and the National Water Policy 2002 all saw
mention of Sustainable development but the National Environment Policy of 2006 witnessed
multiple references of sustainable development. The NEP has ensured integration of
sustainable development policy with all developmental activities. The essential part of
sustainability is the integration of environment, social and economic sustainability. The
objectives of the NEP are conservation of critical environmental resources, intra-generational
equity - livelihood security for the poor, inter-generational equity, integration of
environmental concerns in economic and social development, efficiency in environmental
resource use, environmental governance and enhancement of resources for environmental
conservation18. A few plans that engrained the idea of Sustainable Development with
development are as follows:

1. Ganga Action Plan

2. National Mission for Clean Ganga
3. Swachh Bharat Abhiyan
4. Hazardous Waste Management Rules
17
Arvind Jasrotia, “Environmental Protection And Sustainable Development: Exploring The Dynamics of Ethics
and Law”, Journal of the Indian Law Institute , JANUARY-MARCH 2007, Vol. 49, No. 1, pp. 30-59.

18
Dr. Jayant Dasgupta & Sudeep Deshmukh,” Evolving Environmental Jurisprudence In India”, Legal Era (17
May 2016), < https://www.legaleraonline.com/articles/evolving-environmental-jurisprudence-in-india >

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In the year 2010, the National Green Tribunal Act was the first to incorporate the idea of
sustainable development in section 20 of the Act. This was the first time an act actively used
and incorporated the term ‘sustainable development”. Even though different policies ensured
and developed regulations in accordance with the goals however, it was a clear reference and
a statutory obligation that was mentioned. The principles of International Environment Law
was observed and reconsidered in the case of Jan Chetna vs Ministry of Environment and
forest19. The Supreme court measured that the Precautionary Principle, Polluter Pays
principle, Inter-generational equity are all essential features of sustainable development and
are significant to the environmental policy of the country. The court also states that the NGT
is obligated to adhere to all these rule and efficiently ensure the implementation of all these
policies20. Thus as discussed in the previous chapters, Sustainable development goals were
considered an imperative part of Indian Jurisprudence especially in cases like Narmada
Bachao Andolan, MC Mehta and many others. The keenness of the tribunal to adopt to these
international practices and development has been very welcoming to the environmental
jurisprudence. In the case of T Muruganandam vs Union of India 21, environmental clearance
granted to the Tamil nadu power company was challenged as it was not adhering to
universally accepted scientific parameters. The NGT ascertained that the environmental
impact assessment was essential as per sustainable development standards, it also specified
that worth of foreign judgement depended on the persuasiveness. Taking into perspective of
both international standards and Indian law the court specified that international standards
were necessary to be applied on an Indian context. This indicates judicial astuteness and
preserves the interpretative flexibility of the tribunal in order to incorporate a broader
perspective to “environmentalism”22.

The case of M/S Riverside Resorts Ltd v Pimpri Chinchwad Municipal Corporation 23
elaborated on the scope of “development” and “developmental activities” in the lines of
“sustainable development”. The NGT was posed with an issue regarding whether to allow the
construction of a crematorium along a river bank. The NGT stated that such a construction
was illegal on the grounds that the crematorium was not a developmental activity and by no
means could be a part of sustainable development within the meaning of environmental laws.

19
Jan Chetna vs Ministry of Environment and forest, 2012 SCC OnLine NGT 81
20
Jeet Singh Kanwar Vs Union Of India, 2013 SCC OnLine NGT 1
21
2014 SCC OnLine NGT 7161
22
Nupur Chowdhury, “Sustainable development as Environmental Justice: Exploring Judicial Discourse”,
(Economic and Political Weekly, June 2016)
23
2014 SCC OnLine NGT 3

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Cremation or incineration is not a productive activity that leads to a new thing nor is it
essential for progression or growth of a society. Cremation is only a public utility services
that does not lead to any development. In the case of B B Nalwale vs Ministry of
Environment and Forest24, “the NGT maintained the grant of environmental clearance for a
coal based thermal plant on the argument that the plant was working within ecological
framework and was a significant developmental activity that made its contribution to the
industrial development working on the lines of sustainable development. The judgement
reflects that the discourse of sustainable development pragmatically embraces development
for the maximisation of human welfare in the long run, but not by compromising the
ecological impact, especially where resources are non-renewable or where the end result
would be irreversible25.in the case of Durga Dutt vs State of Himachal Pradesh26, the NGT
stated precautionary principle to be an essential criterion and tool for environmental
safeguard that assists in sustainable development. This principle has the fundamental element
of prevention as well as prohibition.”

“When considering the principle of sustainable development, the courts viewed the
precautionary principle as to be an essential device. The principle envisages the following
conditions:

1. The state and other authorities are liable to prevent and bout the causes of
environmental degradation
2. On the event of pressures of serious and irreversible damage to the ecological balance
then the excuse of lack of scientific certainty should not be used for postponing
actions to avert environmental degradation.
3. The developer or industrialist has the onus of proof to demonstrate that the project is
environmentally benign.”

In the case of Jeet Singh Kanwar Vs MOEF27, the environmental clearance of a power plant
in a village in Chhattisgarh was challenged. The tribunal took reliance on the MC Mehta case
and stated that during any dispute the Environmental interest would be of paramountcy rather
than economic interest. The NGT also thus provided a well laid out precautionary principle

24
29/11/2011
25
Gitanjali Nain Gill, “The National Green Tribunal Of India: A sustainable Future through Principles of
International Environmental Law”, (Environmental Law Review, July 2014).
26
2014 SCC OnLine NGT 223
27
Supra Note 20

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considering that the burden of proof thus lies on the developer or industrialist to adduce that
the plan is sustainable.

At every stage, it can be understood that the judiciary never challenges the opinion of expert
committees or regulatory bodies or the ministry but when it comes to the NGT, the tribunal
lacked reticence when dealing with Environmental clearances from the ministry. It has
challenged these clearance for being cryptic, non-application of mind, and failure to take in
all material factors while giving a clearance.

The other principle of Polluter pays, includes environmental costs. The Supreme court has
provided the ratio that remedying of environmental degradation is an essential part of
Sustainable development. Thus the polluter is liable to pay the cost of damage to not only the
damage but also to remedy it28.

Another significant case is of MP Patil vs Union of India29, where NGT has given essential
jurisprudence in the perspective of India Environmental Regime, the case involved both
ecological and social risk. The group of affected people to be resettled and rehabilitated were
large. The following major consideration took place by the NGT:

I. Necessity for balancing development and environment which is essential under the
principle of Sustainable Development. The Resettlement and rehabilitation scheme
was of considerable importance and hence would be considered by the Expert
Appraisal committee
II. Considering the social impact the scheme had to be described and deliberated to
understand all the project proponent. Thus the views of the general must be taken into
consideration as they would be adversely impacted.
III. NGT made an impactful plea regarding the livelihood of the people or the tribal
chiefly dependent on the natural resources of the environment. The NGT stated the
inter- relation between poverty and degradation of the environment. It also suggested
that improving natural and ecological system and restoring Natural resources at the
grass root level would eliminate poverty.
IV. Passed numerous detailed guidelines for the EAC to review environmental clearances
as well as penalty if the project proponent is unable to complete the resettled and
rehabilitation scheme.
28
Indian Council for Enviro-Legal Action v Union of India (1996) 3 SCC 212; Karnataka Industrial Area
Development Board v C. Kenchappa (2006) 6 SCC 371; M.C. Mehta v Union of India (2006) 3 SCC 399.
29
Appeal No. 12/2012 (March 13, 2014) National Green Tribunal

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NGT passionately addressed the situation of the large tribal groups who are dependent on the
environment which was differing to the reductionist utilitarian approach of the Supreme
Court. If this access to environment is denied on the precept of a “developmental activity”
then it would lead to only more deprivation an poverty.

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 CONCLUSION

As mentioned earlier the needs of the rights of person dependant on natural resources must be
given statutory recognition. With this thought, the parliament passed the Scheduled Tribes
and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006. The act
realises access for tribal communities and also answered and corrected the absurdities of the
Indian Forest Act, 1927. The NGT also remarked on the public hearing spectrum as is
provided under EIA. The objective of such hearing was to weigh the consequences of the
proposed project on both on both negative and positive perspective as well as assess the
impact on project affected communities. The NGT has put forth an attempt to retreat from the
Supreme Court's myopic utilitarian comprehension of the concept of Sustainable
development, which unnecessarily centres around cleaning and contamination control instead
of on counteraction and prevention. Additionally, it has looked to feature the means of
subsistence of natural resources management and the connection between ecological
debasement and neediness. All the more essentially, the NGT has tried to fortify procedural
shields which guarantee the estimation of public support and participation in ecological
dynamic. In growing such a scope of legal advancements, the NGT has been effective in
keeping away from the impasse which went up against the Supreme Court.

“India is a party to numerous significant international initiatives for the environment. The
Indian Constitution is one of the few constitution of the world that has specific provision
towards environmental protection. The Directive Principles of State Policy as well as the
fundamental duties play an important role on Indian Environmental Jurisprudence the need to
create a sustainability for the future generations. Part III of the constitution may not provide
the Right to pollution free as a fundamental right but when the judiciary addressed this
situation through Article 21 of the constitution it clubbed the right to life and personal liberty
to include the right to a wholesome environment.

The global ethic of protecting the environment is created on the supposition of duties and
obligations in a context of growing ecological awareness, ecological threats. It is in this
broader context that the binding between the 'goal of development' and the 'proviso of
sustainability' must be understood as an inclusive ethical position.”

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