Critique of Legislative & Judicial Response to Sustainable Development in

India:
By : Vijay Oak Asst. Professor, Vasantrao Pawar Law College, Baramati
(Maharashtra)
__________________________________________________________________
Right to development has assumed great importance in developing countries.
Development does not mean mere economic growth but it rather means expansion
of freedoms and opportunities in words of Amartya Sen. It also includes removal
of obstacles like hunger, malnutrition, ill-health and illiteracy. However right to
development is not realized immediately but progressively. Economic growth is
necessary for its realization. Hence infrastructural development is one of the
priorities of most of the governments.1 Especially in developing country like ours
an urge for developmental projects is quite natural as even the most basic amenities
like electricity and water have not reached in many villages. However in the
process of development we must not destroy our environment. A balance needs to
be struck between development and environment. It is possible through sustainable
development. The model of economic growth we have adopted is fundamentally
unsustainable and inequitable. The 12th plan advocates making economic activities
more responsible in their use of resources and in the wastes they produce,
promoting public transport, encouraging recycling, making tourism more
environmentally responsible and moving towards low carbon strategies and so on.
The concept of sustainable development has been evolved through a number of
international instruments such as Stockholm, Rio and Johannesburg Declarations,
Kyoto protocol, etc. It is a positive concept that calls for changes in the attitudes
1 See generally Sengupta Arjun, The Right to Development and Its Implications for Governance Reform
in India, in C. Raj Kumar and K. Chokalingam edi. Human Rights, Justice and Constitutional
Empowerment, 2nd edn. Oxford University Press (2007), pp. 183-199
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and values that are responsible for making the current trends of development
unsustainable. In that sense it represents an ethical position designed for political
or public action.2
India is a signatory to most of these instruments and is committed to the cause of
sustainable development.
Unfortunately the present development process in India appears to be beneficial to
handful of people and adivasis or tribals are generally the victims of this
development process. The rate of development induced displacement is alarming
and hence resettlement and rehabilitation of project affected persons must be given
priority in any developmental activity.
On account of hazards involved in development process, the role of legislature and
judiciary become important. The Parliament has passed a number of laws to ensure
environmental protection in the process of development, but most of them do not
address the complex issues of sustainable development adequately or they lack
proper mechanism to punish polluters.

For instance under Water Act, 1974 the

court may take cognizance of an alleged offence provided a notice of 60 days is

given and it enables the industry concerned to remove the incriminating evidence
for the time being.3 The Act do not incorporate polluter pays principle in true
sense. Therefore the Act needs to be suitably amended so as to compel the polluter
of water to pay the remediation cost. Implementation problem adds further to the
failure of this Act.

2 Sustainable Development: Emerging Issues in Indias Mineral Sector, Report of ISID (2012) available
at planningcommission.gov.in/reports/ser/isid_ mining
3 Section 49 (1) (b)
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Air Act, 1981 was enacted to prevent, control and abate air pollution and also for
implementing the decisions taken at Stockholm Conference on Human
Environment held in 1972. However under the Act the court may take cognizance
of any alleged offence only if a notice of 60 days is given. 4 Hence conviction of air
polluter becomes extremely difficult. This Act also does not incorporate polluter
pays principle in real sense. To strengthen the effectiveness of the State Boards
they must be empowered to order remediation cost against the polluter.
Wild Life (Protection) Act, 1972 interestingly incorporates principles of
sustainable development even though the concept was not well articulated by then.
The aim of the Act is to provide for the protection of wild animals, birds and plants
and for matters connected therewith or ancillary or incidental thereto. The Act also
provides for declaration of sanctuaries and national parks for effective protection
of wild life. Although the Act aims at conservation of wild life, it also protects right
to livelihood of tribals or forest dwellers. So it seeks to balance environmental and
economic concerns.
Public Liability Insurance Act, 1991 and National

Environment Tribunal Act

1995 replaced by National Green Tribunal Act, 2010 support sustainable

development by incorporating polluter pays principle and absolute liability
principle in express words. Further Forest Rights Act, 2006 advances the cause of
sustainable development by securing ownership right for tribals on forest land
traditionally cultivated by them for a number of years.
As said earlier the aspects of rehabilitation and resettlement were not given much
attention in our laws. An effort to minimize the agonies of displaced persons has
been made in The Land Acquisition, Rehabilitation and Resettlement Bill, 2011
4 Section 43
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which is pending before the Parliament. The provisions of the Bill are sought to be
made applicable to acquisition of land by private company equal to or more than
100 acres in rural area or equal to or more than 50 acres in urban area. However
the provisions of the bill will not be applicable in case of national and state
highway projects. Clause 3(C) of the bill defines an affected family in a
comprehensive manner. It mainly includes a family whose land or immovable
property has been acquired, a family whose members are agricultural labourers,
tenants, share croppers or artisans, tribals and traditional forest dwellers who have
lost any of their traditional rights under Recognition of Forest Rights Act,2006 and
a family whose primary source of livelihood for three years prior to the land
acquisition is dependent upon forests or water bodies and includes gatherers of
forest produce, hunters, fisher folk and boatmen and such livelihood is affected
due to such acquisition of land.
Infrastructure project shall include any one or more of the following,
namely:
(i) any project relating to generation, transmission or supply of electricity;
(ii) any project relating to telecommunication services;
(iii) construction of roads, highways, defence projects, bridges, airports, ports, rail
systems or mining activities, educational, sports, health care, tourism,
transportation, inland waterways, inland port, space programme, projects involving
agro-processing and supply of inputs to agriculture, projects for preservation and
storage of processed agro-products and perishable agricultural commodities and
housing for such income groups, as may be specified from time to time by the
appropriate Government;

(iv) water supply project, irrigation project, water harvesting and water
conservation structures, water treatment system, sanitation and sewerage system,
solid waste management system;
(v) any other project or public facility as may be notified in this regard by the
Central Government.
The Bill also provides for social impact assessment in which the concerned
Government has to take into consideration the impact that the project is likely to
have on various components such as public and community properties, assets and
infrastructure particularly roads, public transport, drainage, sanitation, sources of
drinking water, sources of water for cattle, community ponds, grazing land,
plantations, public utilities such as post offices, fair price shops, food storage
godowns, electricity supply, health care facilities, schools and educational or
training facilities, anganwadis, children parks, places of worship, land for
traditional tribal institutions and burial and cremation grounds. It is sad that such
an important bill is pending since 2011.
So legislative response to sustainable development in India is a mixed bag.
The Indian Supreme Court has been quite proactive in incorporating the concept of
sustainable development into our domestic law. It has come up with important
decisions on sustainable development in the past such as Vellore Citizens Welfare
Forum vs. UOI5. In this case the Honble Court observed that the precautionary
principle and the polluter pays principle are part of the environmental law of the
country. Even otherwise once these principles are accepted as part of the
Customary International Law there would be no difficultly in accepting them as
part of the domestic law.
5 AIR 1996 SC 2715
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But there are few decisions delivered by the same Court which do not advance the
cause of sustainable development. It can be criticized for this kind of inconsistent
approach.
In A.P. Nayudu case the Court dealt with precautionary principle extensively but
ultimately did not held that the cashew processing factory is a hazardous one. It
expressed its inability to deal with the scientific issues raised in the case. If the
Court was of the view that there was scientific uncertainty in this regard, still it
could have held the factory hazardous on the basis of precautionary principle.
In Narmada case the Court held that EIA notification 1994 cannot be applied
retrospectively and as the construction has already commenced there is no need of
comprehensive EIA. The Court overlooked the fact that the dam is going to have
relevance to future generations also and hence it ought to have stayed the project
till proper EIA studies have been carried out.
In recent judgment G. Sundarrajan vs. UOI pronounced on 6/05/2013 regarding
Kudankulam nuclear power project in the State of Tamil Nadu, the Court has
rightly appreciated the need of nuclear energy in the context of power deficit in the
country, but it did not give equal importance to protection of environment. The
Court first expressed the view that it will not go into policy decision of the
government, it also observed that such issues are better left to be decided by the
experts and asserted that nuclear energy is clean energy. The Court also observed
that it is deeply concerned with the safety and security of the people of this
country, its environment, its flora and fauna, its marine life, ecology, bio-diversity
and so on which the policy makers cannot be on the guise of national policy,
mutilate or rob of, in such an event the courts can unveil the mask and find out the
truth for the safety, security and welfare of the people and the mother earth.
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But in fact it did not consider seriously nuclear disasters at Chernobyl and
Fukoshima and surprisingly went on to observe that the said nuclear project at
Kudankulam will protect right to life guaranteed under Article 21 of the
Constitution.
Hence the judiciary needs to be more consistent in applying principles of
sustainable development and should not hesitate in strict compliance with
norms even if huge investment is involved in the project.

EIA