LAW MANTRA THINK BEYOND OTHERS

(National Monthly Journal, I.S.S.N 23216417)

“Conservation versus Development – The Need for Sustainability”

Introduction

“It cannot be lost sight of that while today is yesterday's tomorrow, it is tomorrow's yesterday.”

The above quote of the Hon’ble Supreme Court is a reiteration of the popular saying “Nothing

endures but change”. Man is constantly changing the environment around him, thereby

adapting it or himself to best suit his needs.

The Stockholm Declaration proclaims that, Man has acquired the power to transform his

environment in a countless ways and on an unprecedented scale. The Man cannot be

denied the right to develop himself. Protection of environment without development would be

unsustainable. Yet, the exercise of the right to development must be within a well defined

ambit. This cast upon Man an obligation to preserve such heritage and resources for the future

generations. This right, when analyzed from a Hohfeldan Perspective, comes along with a

jural correlative duty. When a right is invaded, essentially a duty is violated. . No person may

be attributed a full right to environment, nor a full right to development. In India, the judiciary

has time and again faced a clash of these two rights. The inevitable compromise which is

struck is through sustainable development. Not in all cases development is allowed at the cost

of environment and neither is development sacrificed for the sake of environment. There has

been a judicial application of many principles such as intergenerational equity, precautionary

principle, doctrine of public trust, and the polluter pays principle, for reaching sustainability.

Conservation and Development: A Conceptual Analysis

The word “conservation” basically denotes the protection of environment. Conservation

includes preservation, maintenance, sustainable utilization, restoration and enhancement of the

natural environment. The Constitution of India also provides for conservation of environment.

Conservation generally means the official care, protection and management of natural

resources.

Development is a process, not a product. Porter (1985) defines “development” as to include

economically, sharp and sustained increase in National Product, socially, and redistribution of

national income on an egalitarian basis and incorporation of marginal masses into the money

economy and culturally, the emergence of a new social image. Development includes securing

of social justice to every citizen. It encompasses the development of personality. Thus the

securing of adequate means of livelihood also falls into the scope of “development”.

Right to Development

The word “right” is defined by Ihering as “legally protected interests”. Austin explains his

conception of rights thus, “A person has a right when another or others are bound or obliged by

law to do or forbear towards or regard of him”. A duty in a strict sense correlates to a right. A

duty, when not performed, leads to violation of a right. Where there is an invasion of a right,

there is violation of a duty. A person having a right to development also has a duty to protect

the environment.

The United Nations Declaration on Right to Development characterizes the right to

development as an “inalienable Human Right”. The Declaration also guarantees every human a

right to economic, social, cultural and political development. This right also includes full

sovereignty over natural wealth and resources. This has been reaffirmed by the Vienna

Declaration and Programme of Action, 1993

The Indian judiciary has described the Directive Principles of State Policy enshrined under Part

IV of the Constitution as the forerunners of the UN Convention on Right to Development, by

conferring a “Human Right” status to development. The Directive Principles of the State

Policy directs the State to promote welfare of the people and also seeks to reduce disparities in

economic conditions of different strata of the population . It is clear that the Constitution

intends to promote equitable development of the underdeveloped as well as the developed

segments of the Indian society by directing the state to introduce developmental projects.

In Olga Tellis v. Bombay Muncipal Corporation, the Supreme Court brought the right

to livelihood under the ambit of right to life. The Court held, “The State may not by affirmative

action be compellable to provide adequate means of livelihood or work to its citizens, but, any

person who is deprived of his right to livelihood except according to just and fair procedure of

law can challenge the deprivation as offending the Right to Life conferred by Art.21”

The development contemplated should not be limited to the basic needs. By the right to

Development, which includes right to work, we do not confine ourselves to simply have a job,

but to find self realization in this process; this right is not to be alienated through production

processes that use human beings as mere tools. The Rio Declaration does speak of the

satisfaction of the basic needs, and talks of the eradication of poverty as an indispensible

requirement of sustainable development. The right to development contemplated under the Rio

Declaration is with an intention to equitably meet the developmental and environmental needs

of the present and future generations. The right to development cannot be exercised in such a

way as to transgress the right to environment. In other words, there can be no full right to

development.

The Right to Environment

The word “environment” includes water, air, and land and the inter relationships which

exist among water, air and land and human beings and other living creatures, plants, micro-

organisms and property. Earlier, during the initial days of the Constitution, there was no

provision for environmental rights in it. On the expansion of the ambit of Right to Life under

Art.21, eventually, the right to environment got recognized. In Francis Coralie v. Union

Territory of Delhi, the Supreme Court held, “We think that the right to life includes right to

live with human dignity and all that goes along with it, namely the bare necessities of life.”

The right to a wholesome environment has been brought under the purview of fundamental

rights in the Dehradun Limestone Valley case. The Supreme Court observed “The enjoyment

of life and its attainment and fulfillment guaranteed by Art.21 of the Constitution embraces the

protection and preservation of nature’s gifts without which life cannot be enjoyed.”

In Subash Kumar v. State of Bihar, it was held that Art.32 is designed for the enforcement of

fundamental right of pollution free water or air. In P. A. Jacob v. Superintendent of Police,

Kottayam , the Kerala High Court observed “Compulsory exposure of unwilling persons to

dangerous levels of noise would amount to infringement of right to life under Art.21 of the

Constitution.” The right to environment, apart from being brought into the purview of the

fundamental rights under Part III of the Constitution, has also been treated as a human right.

Enviro-human rights jurisprudence is moving towards maturity and omnipresence in India.

Apart from the many cases which enforce the right to environment, there are a plethora of

legislations which give effect to right to environment. For instance, Wildlife Protection Act,

1972, Air (Prevention and Control of Pollution) Act,1981, the Environment Protection Act,

1986 etc. The pertinent question which may arise would be as to the nature of right with

relation to the right to the environment. The rights of a person to environment cannot be

absolute in nature. There are many criticisms in relation to the theory of “full rights” over the

environment. There can be no existence of certain other species with mankind if the right of

man over environment is a “full right”. There is a suggestion of a different legal definition of

environment, from the dimension of duties rather than rights.

From a Hohfeldan perspective, a right has a jural co relative, duty. Thus, the object sought to

be achieved from vesting a right to environment, would be satisfied if a person has a strong

duty to protect his environment.

The Dichotomy between Environment and Development

The Supreme Court once observed “A great American judge emphasizing the imperative issue

of environment said that he placed Government above big business, individual liberty above

government and environment above all… The issues of environment must and shall receive the

highest attention from this court”

The judiciary has many a times faced a need to prioritize between two rights,

development and environment. In Sachidanand Pandey v. State of West Bengal, the location

of a hotel was challenged on the ground that it was in the path of migratory birds. The Court

held that, ”The court may always give necessary directions, but it cannot nicely balance

considerations. When that is the issue in question, the decision of the concerned authority is

accepted”

In Dahanu Taluka Environment Protection Group v. Bombay Suburban Electricity Co.

Ltd. , The location of a thermal power station was challenged. The Supreme Court declined to

interfere, stating that the role of the court was restricted to examining whether the government

had taken into account all the relevant aspects and was not influenced by extraneous material in

reaching its final decision.

In Banwasi Seva Ashram v. State of UP, the Supreme Court gave safeguards for the

safety of forest dwellers that were being ousted by the National Thermal Power Corporation,

for the construction of a thermal plant.

One of the most landmark cases where the court faced the dilemma between conservation and

development is the Dehradun Limestone case. The litigation was against certain mining

operations carried out in the Dehradun valley which destroyed the valley’s vegetation. This

caused irreparable loss to the environment. The Supreme Court, ordered that the limestone

quarries causing damage to the environment be closed down. Also, the court directed that

afforestation and soil conservation programs be taken up in those areas.

In the Taj Trapezium case, the court looked into in detail the conflict between environment and

development. The case was for protection of a monument, the Taj Mahal, from certain

foundries, the chemical and hazardous industries and refineries of Mathura, The court opined

that the Taj itself could be considered an industry. The court upheld that the pollution created

as a consequence of development must commensurate with our ecosystems.

The Bruntland Commission report says that, “The environment is where we live and

development is what we do. The two aspects are inseparable” The two rights, i.e. Environment

and development, when they pause at the boundary where they do not transgress each other,

reach a point which is called Sustainable Development.

Striking the Balance – Sustainable Development

The Rio Declaration provides that the right to development must be fulfilled as to equitably

meet developmental and environmental needs of the present and future generations.

Sustainable Development has been defined by the Bruntland Committee as the development

which meets the needs of the present without compromising the ability of the future

generations to meet their own needs.

The need for sustainability may be analyzed through the example of agriculture. When

Man first took to agriculture, he did not contemplate that it could create an adverse effect on

environment. After industrial inputs like machines, chemical fertilizers and pesticides,

environmental pollution through agriculture resulted in unsustainable agricultural development.

Thus, with an intention to gain more produce, the exploitation of natural resources has led to

unsustainable development. The damage caused, if irreparable, would mean that there is an

over exploitation of natural resource.

Man has a responsibility to protect and improve the environment for the present and future

generations. The whole concept of sustainable development is based on the doctrine of

intergenerational equity. The Doctrine of Intergenerational Equity in the Indian Scenario is

evolved in the case State of Himachal Pradesh v. Ganesh Wood Products. In this case, the court

held that the government developmental agencies ought to give regard to three factors for

development, namely, environmental policy of state and central government, sustainable

development and the use of natural resources, and the obligation of the present generation to

preserve natural resources and pass on to future generations.“Sustainable Development” makes

it imperative that environment should be considered as an integral part of national development

rather than just a crucial guiding principle. The essential principles in relation to sustainable

development are the precautionary principle and the polluter pays principle.

The Polluter Pays Principle establishes the requirement that the cost of pollution should be

borne by the person responsible for causing such pollution. In India, this principle has been

applied in the Shriram Gas Leak case where the doctrine of absolute liability was founded.

The Precautionary Principle, in the context of municipal law, means,:

• Environmental measures by the State Government and the Statutory Authorities must

anticipate and prevent attack and degradation

• Onus of proof on the actor to show that he is environmentally benign

Thus, sustainable Development may be understood in two dimensions; firstly, as a compromise

between the right to development and the right to environment, secondly, as an incorporation

of the principles of Intergenerational equity, the polluter pays principle and the precautionary

principle.

Conclusion

At the end, the ultimate truth remains that the natural resources can be the best gift we preserve

and render to our future generations and this should not be destroyed on the pretext of

developmental activities. It is our prime duty to protect and conserve our environment. The

natural resources which are non-renewable are the most valuable and must not in any manner

be over exploited. Adequate caution must be exercised to preserve the nature, for our future

generations. Both the right to environment and the right to development are not absolute. In

many cases, there occurs a transgression between these two rights. In a case where a balance is

struck, where one person’s development through exploitation of natural resources does not

hamper another person’s right to enjoy the same, there is sustainability. Sustainable

development is the only compromise between the needs of the present and future.

By:- Viswanath M.K, B.A LL.B, KLE Society's Law College, Bangalore University