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Date: Feb 25, 2008 8:32 PM
Subject: [WaterWatch] Disturbing trend in the Supreme Court: Sanjay Parikh
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Excerpts from the most recent paper on the disturbing trend in the Supreme
Court ****
**
*DEVELOPMENT OF ENVIRONMENTAL LAW: A CRITICAL APPRAISAL*
-
Sanjay Parikh
It is necessary - before we discuss the development of Environmental Law by
our Courts, in particular, the Supreme Court – that we have a brief look at
the international developments on environment. Broadly, it started with
Stockholm Declaration commonly known as "Declaration of the UN Conference on
Human Environment, 1972" where it was asserted that both aspects of man's
environment, the natural and man made, are essential to his wellbeing and to
the enjoyment of basic human rights – even the Right to Life itself. This
Declaration had resulted in 42nd Amendment in our Constitution and the
enactment of Environment Protection Act, 1986 and Air (Prevention, Control &
Pollution) Act, 1981. The Stockholm Declaration was followed by the "Earth
Summit" known as the Rio Declaration, 1992 which was based on the report
"Our Common Future" (also known as "The Brundtland Report") which finally
culminated in the document "Caring for the Earth". Nearly 240
Treaties/Declarations exist on protection of environment, among them Agenda
21 and Summit at Johannesburg on sustainable development in 2002 can be
taken note of. But whether the ideas developed in these international
instruments have made a real impact in preservation of environment at
national level is required to be seen.
The development of environmental jurisprudence in our Courts can be broadly
put into cases[1]<
http://mail.google.com/mail/?ui=1&view=page&name=gp&ver=sh3fib53pgpk#_ftn1>where
the environmental principles developed in International Conventions
and Treaties, were sought to be incorporated in the Municipal Law on the
basis that these principles are a part of customary international law. The
Court also took them as an integral part of Article 21 of the Constitution
which protects life. Thus, environment became a part of life itself. Right
to environment is, therefore, accepted as a human right and also a
fundamental constitutional right. By referring to Stockholm Declaration,
1972 and Rio Declaration, 1992, the Supreme Court stated the importance of
Pollutor Pays Principle, Precautionary Principle, Inter-generational Equity
Principle, Absolute Liability Principle, Public Trust Doctrine and Reversal
of Burden of Proof in the important environmental cases. This was no doubt
an era where the Supreme Court showed remarkable leadership in implementing
the global environment concerns.
It said that "tolerating infringement of law is worse than not enacting the
law at all."
But on analysis of these judgements, we have to find as to what extent the
environmental principles could be actually implemented and how effective was
the procedure of monitoring adopted by the Supreme Court.
Let us now look at the Precautionary & the Sustainable Development
Principles and their understanding and implementation by the Supreme Court.
In several cases, the Court has referred to "carrying capacity" of the
environment and that any exploitation of the natural resources should not
exceed their carrying capacity or assimilative capacity. It is forgotten
that the "carrying capacity principle" evolved in the Stockholm Declaration,
1972 was given up when it was realized that man has immense potential to
irreversibly damage the environment and under the wrong notion that the
nature has immense capacity to revive itself. This notion was, therefore,
rightly substituted by the Precautionary Principle to put a check on the
destroying activities of the human being, namely, warning them that it is
safe to err on the side of caution. It is only in one judgement, i.e. *M.V.
Nayudu[8]<
http://mail.google.com/mail/?ui=1&view=page&name=gp&ver=sh3fib53pgpk#_ftn8>
* that this aspect was explained by the Supreme Court. However, we find that
in subsequent judgements till
2007[9]<
http://mail.google.com/mail/?ui=1&view=page&name=gp&ver=sh3fib53pgpk#_ftn9>,
the Supreme Court is still talking about the carrying capacity and in that
context applying the theory of irreversible damage. One will be shocked to
find that even where experts have found that a particular eco-system has
been exploited/neglected in such a manner that it has lost its carrying
capacity, still it is subjected to environmental appraisal for further
exploitation under the cover of sustainable development, when the only
constitutional obligation and human duty permissible in that situation is
to work for its restoration and revival. Principles like 'sustainable
development' and 'precautionary approach' have no application when we deal
with the rich areas of natural resources, those which are center of origin,
sources of water and its conservation, fragile eco-systems etc. They have to
be preserved and protected for survival of mankind and for future
generation.
In the *Narmada**
case[10]<
http://mail.google.com/mail/?ui=1&view=page&name=gp&ver=sh3fib53pgpk#_ftn10>
,* the Supreme Court refused to apply precautionary principle on the big
dams as if protection of natural resources and its ultimate cost for the
present and future generation is not an integral part of development. The
observation of the Court that the said principle will apply in cases where
extent of damages are not known but not in the cases where they are known
is, with respect, incorrect. Natural Resource, once destroyed cannot be
rebuilt by mitigative measures or even be substituted.
In *Tehri Dam case[11]<
http://mail.google.com/mail/?ui=1&view=page&name=gp&ver=sh3fib53pgpk#_ftn11>
* a highly seismic prone area, right in rare Himalayan ecology, was chosen
notwithstanding precautionary principle. It was done with the full knowledge
that any breach in the dam will cause havoc, submerging several cities in
few hours. Justice Dharmadhikari, who gave a dissenting judgement, invoked
the precautionary principle in support of the safety aspects of the Dam and
had agreed with the experts who had suggested 3-D non-linear analysis of the
dam, to be on the safer side. But the Government authorities had refused it
on the ground of scientific uncertainty. The Majority accepted the
Government's view. If any calamity happens, who will be responsible?
The idea of the "need" in the context of sustainable development has not
been fully and correctly understood. In the *Bombay Dying & Manufacturing
Co. Ltd.*(supra), the dire need of the society has been given precedence
over the inter-generational interests, by using the argument of balancing
environment and development. The need aspect has undergone considerable
debate among the social scientists and environmentalists world over. It
cannot be taken as insatiable desire of an individual, a society or a
nation, which is another form of greed, and are thus allowed to exhaust
natural resources without applying the rule of caution. Unfortunately, under
the cover of need, we are allowing reclamation of sea, estuaries, ponds,
riverbeds & other natural resources and erroneously calling it a balancing
exercise.
One read the full paper at
http://nimmitta.blogspot.com/
------------------------------
[1]<
http://mail.google.com/mail/?ui=1&view=page&name=gp&ver=sh3fib53pgpk#_ftnref1>Vellore
Citizen Welfare Forum 1996 (5) SCC 647
M.C. Mehta vs. UOI (Taj Mahal case) 1997 (2) SCC 353
A.P. Pollution Control Board vs. M.V. Nayadu 1999 (2) SCC 718
Indian Council of Enviro-legal Action (Bichuri case) 1996 (3) SCC 212
[2]<
http://mail.google.com/mail/?ui=1&view=page&name=gp&ver=sh3fib53pgpk#_ftnref2>Indian
Council of Enviro-legal Action (CRZ Notification) 1996 (5) SCC 281
M.C. Mehta vs. UOI (Ganga Water) 1987 (4) SCC 463
RFSTE vs. UOI 2005 (10) SCC 510
[3]<
http://mail.google.com/mail/?ui=1&view=page&name=gp&ver=sh3fib53pgpk#_ftnref3>
M.C. Mehta vs. UOI 1987 (1) SCC 95
[4]<
http://mail.google.com/mail/?ui=1&view=page&name=gp&ver=sh3fib53pgpk#_ftnref4>Supra
[5]<
http://mail.google.com/mail/?ui=1&view=page&name=gp&ver=sh3fib53pgpk#_ftnref5>S.
Jagannathan vs. UOI 1997 (2) SCC 87
[6]<
http://mail.google.com/mail/?ui=1&view=page&name=gp&ver=sh3fib53pgpk#_ftnref6>
M.C. Mehta vs. UOI (Kamal Nath) 1997 (1) SCC 388
[7]<
http://mail.google.com/mail/?ui=1&view=page&name=gp&ver=sh3fib53pgpk#_ftnref7>RFTSE
vs. UOI 2005 (13) SCC 186
[8]<
http://mail.google.com/mail/?ui=1&view=page&name=gp&ver=sh3fib53pgpk#_ftnref8>Supra
[9]<
http://mail.google.com/mail/?ui=1&view=page&name=gp&ver=sh3fib53pgpk#_ftnref9>Essar
Oil
2004 (2) SCC 392
Bombay Dying vs. Bombay Environ Group 2006 (3) SCC 434
Karnataka Industrial Area 2006 (6) SCC 371
[10]<
http://mail.google.com/mail/?ui=1&view=page&name=gp&ver=sh3fib53pgpk#_ftnref10>Narmada
Bachao Andolan
2000 (10) SCC 664
[11]<
http://mail.google.com/mail/?ui=1&view=page&name=gp&ver=sh3fib53pgpk#_ftnref11>
N.D. Jayal & Anr. vs. UOI 2004 (9) SCC 362
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