CHAPTER-1

INTRODUCTION AND HISTORICAL BACKGROUND

1.1. INTRODUCTION

Human race is absolutely dependent upon nature for its existence, continuation and
growth. Nature is a treasure trove that has besides us a variety of flora and fauna. The
triumph of mankind over the nature is in fact, an attempt to humble it and as a result,
havoc towards the nature, which reverberates only on the mankind and other elements
of it in biodiversity. The idea of progress, as understood by the developed west and
blindly emulated by the developing countries is a hardhearted behave with the nature
and is ruining the nature and in turn hitting the human development and humanity. It is
high time that all the countries unite hands and India leads from the front in giving a
clarion call towards environmental governance and its relation to developmental
activities. Today, there is need to amalgamate the present development and future
sustainability, thus, rendering a balance in nature, so the every generation can benefit
from it. Therefore, the experts worldwide have come up with a doctrine called
'Sustainable Development', i.e. there must be balance between development and
ecology. Because, balance is very important to run everything in a smooth manner, as
an example of universe, in which, every planet is working under a proper balance.
Without maintaining the balance between environmental protection and development,

The right to development encompasses much more than economic well-being, and
includes within its definition the guarantee of fundamental human rights 1. In the classic
work, Development as Freedom, the Nobel Prize Winner Amartya Sen pointed out that
the issue of development cannot be separated from conceptual framework of human
right. It has been depicted the world community came out with a compromise which
gives due respect to both the third generation human rights: right to development and

1
Article 2 of Declaration on the Right to Development, 1986
of development and should be the active participant and beneficiary of the right to development .
(UN General Assembly A/RES/41/128, 4 December, 1986, 97 th Plenary meeting).

1
 and several international
and regional instruments conferring legal validity to the concept 2.

1.2. SUSTAINABLE DEVELOPMENT- FOR

UNDERSTANDING

Sustainable is a Latin born term which means to carry on, to endure, to live through, to
maintain, to sanction, to prolong, to encourage, to support the life of (Chambers
Concise Dictionary). Alternatively, term sustainable means to initiate or the ability to
live up or sustain. It may be described as a harmonious balance that manipulates
development along with environmental imperatives 3. It may be noted that, development
and environment must coordinate together as such, one should not be at the cost of
another, rather there should be development while taking care of and ensuring the
protection of environment According to e development is the
art of manipulating quantity and quality of our natural stocks economically to our own
advantage, without exhausting it 4. It means improving the quality of human life while at
the same time living in harmony with nature and maintaining a balance with the life
supporting ecosystem. Therefore the integration of ecology and development is what
can be defined as sustainable development. Sustainable development as defined in the
Bruntdland Report means e present without
Thus
sustainable development is a multi-dimensional concept with three interacting angles: -
Environment, Economics and Society. It is recognized that these three pillars are of
equal importance. Sustainable development does not mean sustainability of the
environment and resource system alone but requires the sustainability also of economic
and social system. But it is critically important to reiterate that if we give priority to one
of the three aspects be it people (poverty alleviation) or planet (conservation) or
prosperity (business development) - we will imbalance the whole, with detrimental

2
Parkash Chandra Shukla,
Study of India and Nepal Nyaya Deep, Vol. X, Issue 2, April 2009, p.65.
3
Emphasis supplied by the researcher. (Environmental imperatives means expressing command for
the protection of environment like seeking to put an end to projects without proper and formal
clearances.
4
The Administrator, Vol., XI; April-June, 1995,
p. 1.

2
effect to all. We need to address all three aspects simultaneously with equal
importance attached to each of the three pillars 5. It is relevant to mention here that India
has been a forerunner in all times but a clear understanding of sustainable development
and a policy for future needs to be emphasized.

1.3. SUSTAINABLE DEVELOPMENT AND DIVERSE CIVILIZATIONS

As far as the growth of sustainable development in India is concerned, it was already

sown as early as the ancient immemorial past whose traces are evidently symbolized in
different holy books and scriptures. Sustainability has in fact been a core element of the
Indian way of life. We may note that since ancient times, men recognized the
potentiality of sustainable development, which had been opted across diverse
civilizations round the globe. In the ancient way of Indian life, before setting foot on the
ground after working in the morning, people addressed the earth as mother and

pilgrimage and worships as God. Ancient Indian literature classified the vans (forests)
into three categories6 (i) Mahavana (ii) Tapovana (iii) Srivana. Classical texts like Manu
Samhita, Brihat Parasar Samhita, Brihaspati Samhita, etc, prescribed punishments for
offenders for destroying trees, animals or for polluting water 7.

According to the Hindu mythology (The Bhagwat Gita, Chapter 9, Verse 6) air has its
origin in heaven- it departs in heaven, springs from heaven, remains in, and finally
disappears into the heaven. In Islam, (Quran Holy Scripture of Muslims) urges that
human beings are protector of nature (Chapter 6; Verse 165); therefore, it is the pious
duty of humanity not to pollute the environment (Chapter 30, Verse 40). Sikhism,
(Guru Granth Sahib, the sacred scripture of Sikhs) retells the holy sa

5
UN Monthly Chronicle, Vol. XXI No. 10, September, 2010, Pp. 90-91.
6
Mahavana- It was impenetrable and was a place for mystical (one who seeks direct communication
with God) manifestation of natural and supernatural forces.
Tapovana- It was penetrable; one could enter in this category of forest with ease. In this type of
forests the rishis retreated to their ashrams to study and apply the fruits of their studies into
practicalities. Most of the Rishis in meditation and religious practices were living in Tapovana.
Srivana- The festivals of the Indian Villages were used to be celebrated in srivana. The panchayats
were held there. (See; NK Chakrabarti, Environment Protection and the Law, SB Wangia, 1994,
p.22, See also; Dr. Raj Pal, (1998) 3
SCJ 46, pp 46-47).
7
NK Chakrabarti, Environment Protection and the Law, SB Wangia, 1994, p.22, See also; Dr. Raj
Pal, Legis (1998) 3 SCJ 46, pp 46-47.

3
speech who said that human body is formed from the five vital elements air, water,
land, fire and sky, which composes nature, thus these too shows a close relation .
Further, it has been said that wind among all other elements of nature, is a virtuous
present for the worship of the Lord. Guru Nanak Ji said that

Divas rat doeh daei deiya, khele sagal

8
.

It means air is our teacher, water body is father; whole earth is mother. It is social
codes which even the Legislature and Judiciary cannot ignore . This can be compared

are all fixed to their own confines; the rotation of earth is also on its limited pivots. It is
the air and water makes the dynamism (secondary rule). Moreover, philosophy of
Buddhism philosophy believes in simple and straight forward life. In others words, one
can said that Buddhism is against the over-exploitation of natural resources. It could be
argued that if everyone spent their lives like Buddhist monk or nun with limited needs,
then problem of environment pollution and degradation of natural resources could be
controlled. Moreover, it will directly control the unsustainable manner of production,
manufacturing and transportation. In Jainism, the well-known practice of animal
renunciation to the fire was criticized as inhuman. They opposed confinement, beating,
overloading or depriving animals from satisfactory food and drink.

Moreover, the first efforts to codify the aspect of environmental protection came from
Kautilya, Prime Minister of Chandragupta Maurya. As early as 300 BC, he realized the
significance of the environment and formulated rules which mandated the rulers to
protect forests and animals and those who defied them had to pay penalties. It may be
noted that this is the earliest documented case of implied law with regards to
environment9.

Guru Nanak Sahib Ji Epilogue in Japji Sahib

(Sri Guru Granth Sahib- Holy Scripture of Sikhs, p.8)
9
Divan Shyam and Rosencranz Armin, Environment Law and Policy in India, Oxford University
Press, New Delhi, edn., 2nd, 2005, p.24.

4
1.3.1. British Era: Environment Protection and Sustainable Development

The advent of the East India Company rose forth a number of environment protection
laws like the Indian Fisheries Act, 189710. The Act banned contaminating of water by
poisoning with lime or deleterious resources. The initiative was to shield fish aquatic
life (one of the natural resources). Moreover, the Orient Gas Company Act, 185711
includes the provisions regarding the regulation of emissions of the Orient Gas
Company that may be released by during the course of its operation and may ultimately
consequence in pollution of water or air. Apart from that, the Wild Birds Protection Act,
1887, The Bombay Smoke Nuisance Act, 1912, the Indian Forests Act 1927, Wild Birds
and Animals protection Act, 1912 etc. were pre-British era endeavours for the protection
and preservation of environment. Though, above said legislations have no direct link
with the environment preservation and the only motive of the Britishers was to lift up
their revenues, but these enactments have proved helpful to control and check the anti-
pollution activities.

1.3.2. Post British Era: Tolerable Progress and Environs Preservation

environment protection and

sustainable development took a new turn, and now the, Legislature, Executive and
Judiciary are working as the protector of the sustainable development principles and
have incorporated several provisions in Indian Constitution, like Articles 14, 19 (1) (g),
21, 26, 32, 47, 48-A, 49, 51 (A) (g), 226, 243-W, 253, Seventh Schedule and Eleventh
Schedule12. Moreover, Parliament of India has passed a large number of statutes, which
exclusively deal with the protection of environment and these legislations are- The
Water (Prevention and Control of Pollution) Act, 1974; Forest (Conservation) Act,
1980; The Air (Prevention and Control of Pollution) Act, 1981; Environment
(Protection) Act, 1986; Public Liability Insurance Act, 1991, the National
Environmental Tribunals Act, 1995; and the National Environment Appellate Authority
Act, 1997; The Scheduled Tribes and other Traditional Forest Dwellers (Recognition of
Forest Rights) Act, 2006; National Green Tribunal Act, 2010 etc 13. In the ambience of
environment protection and sustainable development, the task performed by our

10
Act 4 of 1897.
11
Act 5 of 1857.
12
These Constitution Provisions have been discussed in Chapter III
13
Detail is discussed in Chapter-IV.

5
Juridical System is praiseworthy. The legislature recently has shown sincerity for
sustainable development in some of the statutes. But, primarily the credit for making

o constitution
and obligations of India under various multi-lateral treaties, conventions and even
conferences14.

1.4. INTERNATIONAL EAGERNESS FOR ECOLOGICAL

PRESERVATION AND SUSTAINABLE DEVELOPMENT

So far as the international endeavours regarding sustainable development and

preservation of environment are concerned, undoubtedly, Stockholm Conference 1972
is considered to be the Magna Carta. It was the first occasion when world community
assembled on an important issue of environment protection and Sustainable
Development. Stockholm Declaration proclaimed that, man is both creator and
destroyer of his environment. Today the entire globe is concerned in adopting
sustainable development and various approaches are implemented to achieve the same.
But often the multinational organizations mistake sustainable to be a method of
achieving sustained profit or benefit rather than its relation to environment. In 1980,

15
necessary for our surviv .

The World Commission on Environment and Development (WCED) 16 in its report (Our
Common Future) has analyzed the present way of sustainable development and tagged
it as improficient. Two key concepts could be seen in the Commission definition for
sustainable development
1) Wants of the under-developed States and their people like food, shelter, wealth,
sources of employment, literacy etc. should be the first concern.
2) As some of the natural resources are limited, therefore, keeping in view the
sustainable development, the limits of nations States and citizens should be
clarified.
14
Detail is discussed in Chapter II, III, IV and V of the present Study.
15
Davis Hughes, Environmental Law, Reed Elsevier Ltd., UK, edn., 3 rd, 1996, p.16.
16
Established by the U.N. General Assembly in December 1983 was chaired by Norwegian Prime
Minister, G.H. Bruntland, released in 1987.

6
Keeping in view above two concepts, it could be said that sustainable development is
not only about progress but requires a change in the way of progress, so that
environmental deterioration may curb.
1.5. ORIGIN OF TERM SUSTAINABLE DEVELOPMENT
Initially, the word sustainable development came to be capitalized in Cocoyoc
Declaration, 1970. Preservation of environment was the main motto of the declaration.
The concept of sustainable development has received approval as early as in 1972 in the
Stockholm declaration. It had been declared in the declaration that:

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 well being and he bears a solemn responsibility to protect
and improve the environment for present and future generations17.
Further, the idea of sustainable development was imported in the World Conservation
Strategy of 1980. But the concept was given a definite shape in a report by World
Commission on Environment and Development, which was known as Our Common
Future18. Such documents also attracts debates of nation states towards another
hindrance to sustainable development i.e. poverty. They argued that poverty and
economic growth
pereservation and economic development is important. The concept had been further
discussed under Agenda 21 of UN Conference on Environment and Development19.
Further, the United Nations Conference on Environment and Development, held at Rio
de Janeiro, Brazil (Earth Summit) from 3 to 14 June, 1992 also confirmed the above
statement with the hope of team work of nations for achieving sustainable development.

1.6. GROWTH OF THE CONCEPT OF SUSTAINABLE DEVELOPMENT

Healthy environment and its preservation and the right to development are group rights
and are loosely described as third generation rights 20. The right to sustainable

17
Principle 1 of Stockholm Conference on Human Environment, 1972.
18
Also known as Bruntdland Report, the commission, which was chaired by the then Norway Prime
Minister, Ms. G.H. Brundtland defined Sustainable Development' as:" Development that meets the
needs of the present without compromising the ability of the future generations to meet their own
needs". The report is report'.
19
One of the documents arises from the United Nations Conference on Environment and Development,
held at Rio de Janeiro (Brazil) from 3 to 14 June, 1992.
20
Report of the National Commission to Review the Working of the Constitution, Volume 1, Ed. 2002,
Universal Law Publishing Co. Pvt. Ltd. P.66.

7
development has been declared by the UN General Assembly as an inalienable human
right21. The declaration recognizes that human beings are the central subject of the
development process and that the development policy shall make the human being the
main participant and beneficiary of development. Development is defined as a

constant improvement of the well being of the entire population in development and in
the fair distribution of benefits there from22. The term sustainable development came to
be used in Declaration on Environment and Development in early seventies of the 20th
Century. Since then this term has received recognition in the international treaties
dealing with environment. Initially, the concept came to existence in Trial Smelter
Arbitration, 1941; and International Convention for the Prevention of Pollution of the
Sea by Oil, 195423. Further, in 1967, Maltese Proposal at the United Nations General
Assembly, it was realized that for the preservation of nature, both developed and
developing nations are required to pursue the developmental activities within the four
walls of legal sanctions.

As indicated above, the concept attracts the concentration of international in Stockholm

Declaration, 1972. In this conference several principles were developed. Among these
Principles, Principle 3 24, Principle 525 and Principle 1126 were focused on the concept of
sustainable development. In 1973, New Zealand v. France (Nuclear Tests Case)27,

21
Declaration on the Right to Development, 1986.
22
S.K. Verma, , Journal of Indian Law Institute. Vol.40, 1998 pp.
217 to 229.
23
Detail is discussed in Chapter-II of he present study.
24
The capacity of the earth to produce vital renewable resources must be maintained and, wherever
practicable, restored or improved.
25
The non-renewable resources of the earth must be employed in such a way as to guard against the
danger of their exhaustion and to ensure that benefits from such employment are shared by all
mankind.
26
The environmental policies of all States should enhance and not adversely affect the present or future
development potential of developing countries, nor should they hamper the attainment of better
living conditions for all, and appropriate steps should be taken by States and international
organizations with a view to reaching agreement on meeting the possible national and international
economic consequences resulting from the application of environmental measures.
27
I.C.J (International Court of Justice) Reports 1973-74. This case was brought to the international
Court of Justice on 9 th May, 1973, when New Zealand instituted proceedings against France in terms
of a dispute concerning the legality of atmospheric nuclear tests conducted by France in the South-
Pacific region. The Court stated, in a vote of 9 to 6, that the objective of New Zealand for the total
cessation of nuclear-atmospheric testing by the France government had been reached and their no
longer existed a dispute for which the Court could contemplate and adjudicated. (See; www.
-12-2014).

8
International Court of Justice (ICJ) held that atmospheric nuclear tests accomplished by
France in the South-Pacific region, following radioactive fallout were a violation of
New Zealand rights including environmental rights. In 1980, with the advice of United
Nations Environment Programme and World Wide Fund, the World Conservation
Strategy was prepared by World Conservation Union. It was another step in the
development of the concept. Further in 1982, the South Pacific, the World Charter for
Nature drew the serious attention of the globe which led to the further development of
the concept. To achieve sustainability, the Vienna Convention was established to stop
the depletion of ozone layer, which was followed by Montreal Protocol, 1987. To step
down the ozone weaken elements by restricting and regulating developmental processes
is the objective of the protocol. Further, Basel Convention on the Control of
Transboundary Movements of Hazardous Wastes, 1989 was another footprint of
international community in the way of sustainable development.

Moreover, the Bamako Convention on the Ban of the Import into Africa and the
Hazardous Wastes within Africa, was held on 1991. The object of the convention was to

originate the precautionary principle. In addition, the Association of Southeast Asian

Nations (ASEAN) Agreement of 9th July, 1995, nation states agreed to preserve bio-
diversity28 and promised to maintaining output of the natural resources in its territorial
jurisdiction. The productivity was to be in accordance with scientific principles with the
concept of sustainable development being kept in the forefront.

Further, Gabcíkovo-Nagymaros Project Hungary v. Slovakia, (1997) 29 has also

concerned with environment and sustainable development. The case brings to light for
the first time International Court of Justice, the necessity to preserve the environment,
the right to the environment as a human right, and the transboundary water law.
Although, the ruling did not take into consideration enough of the above factors, the

case of sustainable development in the context of human rights has been the primary
step to discussions at an international level and jurisprudence on the matter.

28
Bio-diversity means the number and variety of plants and animals species that exist in the world
generally or the problem of preserving and protecting this.
29
-11-2014

9
From the above discussion, one can easily say that international community under the
headship of United Nations Organization has played a significant role to make
environment protection and sustainable development a common goal of the whole
world.

1.7. RECENT TRENDS

From Rio to Johannesburg and beyond30 international community under the United
Nations were continuously taken steps towards the development of the concept of
sustainable development. Moreover, to secure the applications of decisions of
conferences, the Commission on Sustainable Development was established. In the year
of 2000, Nation States under United Nations Development Programme, made some
commitments in the form of Millennium Development Goals, aimed at eradicating
poverty, achieve universal primary education, promote gender equality and empower
women, reduce child mortality, improve maternal health, combat HIV/AIDS, malaria
and other diseases, and ensure environmental sustainability and develop a global
partnership for development, when the current ones expire in 2015 31. Undoubtedly,
MDG was sustainable development inspired step, but it is also true that still the
desired goals have not been achieved. Therefore, in 2010 High-Level Plenary Meeting
of the General A s urged the Secretary General of United Nations
to initiate thinking on a post- 2015 development agenda. The United Nations Climate
Change Conference, Durban 2011, was another step for the renewal of the Kyoto
Protocol, 1997 and the Cancun Agreements, 2010. Moreover, the BASIC Experts
Meeting, 26 February, 2011 (Brazil, South Africa, India and China) was also paying
attention on the Green Climate Fund, and the need for urgent steps by the developed
nations on their green house gases emission reduction targets in the pre-2020 period.
This would include the immediate ratification of the second commitment period of the
Kyoto Protocol32. Further, the United Nations Conference on Sustainable Development

30
The Delhi Ministerial Declaration on Climate Change and Sustainable Development 2002, United
Nations Framework Convention on Climate Change, Copenhagen, 2009, the United Nations Climate
Change Conference, Cancun, 2010, the United Nations Climate Change Conference, Durban 2011
and the United Nations Conference on Sustainable Development (Rio+20), 2012.
31
www.un.org/en/ecosoc/about/mdg.shtml, accessed on May 11, 2014.
32
http://articles.economictimes.indiatimes.com/2014-0809/news/52620596_1_industrialised-countries-
climate-change-edna-molewa, accessed on 28-11-2014.

10
(Rio+20), 2012 are another initiative taken by international community for achieving
the concept of sustainable development. The main aim of above stated conferences were
to set up a future agenda for sustainable development and affirms that everyone in the
globe to have approach to sustainable food, energy and water without deteriorating the
nature. Moreover, United Nations Conference on Sustainable Development (Rio+20),
2012 emphasized upon green economy in the context of sustainable development and
poverty eradication and the institutional framework for sustainable development. To
of the major achievement of
Rio+20, at present Economic and Social Council is under obligation to prepare the
agenda of a post 2015 period. SDGs will definitely fill the gap that has not been
fulfilled by Millennium Development Goals (MDGs). Moreover, the proposal of New
Development Bank in the 6th BRICS Summit, 2014 by BRICS nations is another
addition in the development of the sustainable development

1.8. DEVELOPMENT OF SUSTAINABLE DEVELOPMENT IN INDIA

Since 1952, the issue of environment preservation did not receive any significant
recognition in the planning process. However, in the Fourth Five Years Plan (1969-
1974), it was stated that nature preservation should be the inseparable part of the
planning process. Consciously, the origin of environment movement in India was with
the United Nations Conference on Human Environment held at Stockholm in June
1972. Because of Conference, certain new provisions were inserted in Indian
Constitution by 42nd Amendment in 1976 with regard to preservation of environment
throughout the country. Further, in Seventh Five Years Plan (1985-1990) saw a more
significant progress in environment and ecology and set up the Ganga Action Plan to
prevent the Pollution of the river water of Ganga and to restore its purity. Then the
Planning Commission of India recommended that all future development programmes
must take environmental considerations fully into account and all activities which may
cause loss of environment quality may have to be carefully regulated 33. In the Eighth
Five Years Plan (1992-1997) the well settled principles of Polluter Pays and Sustainable
Development was adopted by Government of India as policy programs for controlling

33
The approach to the Seventh Five Year Plan, 1985-90, Government of India, Planning Commission,
New Delhi, pp. 7-8.

11
the pollution of all types. Recently, the 12th Five Years Plan (2012-2017) has the basic
and it emphasizes that the
stated objectives may be achieved to follow the broad strategy. Thus, the environmental
preservation is being well-advised to achieve both sustainable development and better
quality of life34. To make environment preservation and sustainable development a
really potent force in 21 st Century, the role played by the Ministry of Environment and
Forests (MoEF) is laudable. To phase out the ozone depleting substances from India,
the MOEF has set up an Ozone Cell as a national unit to implement the Montreal
Protocol and Vienna Convention. Further, the International Cooperation and
Sustainable Development Division (IC&SD) has been established by MoEF with the
responsibility of co-coordinating sustainable development activities. Moreover,
Constitutional provisions, legislative enactments and judicial decisions for the
protection and preservation of environment and sustainable development are evident
that India is sincere for the sustainable development. Last but not the least, role and
belief of India on balanced development could be seen in Copenhagen Summit, Cancun
Summit, Durban Declaration, BASIC Experts Meeting, 2011, U.N Conference on
Sustainable Development, Rio+20, 2012; International Conference on Sustainable
Agriculture, Food and Energy (SAFE) 2014, Bali (Indonesia); BRICS Summit, 2014;
and in G20 Leaders Summit, Brisbane (Australia) 2014 .

1.9. OBJECTIVES OF SUSTAINABLE DEVELOPMENT

Sustainable development concentrates on following things:

Preservation of nature should be the foremost objective of the economic

progress.

There should be balance between the use of natural resources and its rate of
regeneration.

Government and people should consume non-renewable natural resources with

sincerity and responsibility and they should make the continuous endeavours to
find out the better alternatives of them.

To provide quality of environment for better life, which we all share.

34
http://moef.nic.in/division/introduction-2, accessed on April 7, 2014.

12
 Natural resources belongs to both present and future generations, therefore, we
should enjoy them in such a way, so that it could passed away to the upcoming
generations.

1.10. PRINCIPLES OF SUSTAINABLE DEVELOPMENT

The principles of sustainable development as defined in Report of World Commission

on Environment and Development (Brundtland Report, 1987) and in other international
documents prepared at Rio Declaration, 1992. The significant elements of sustainable
development are as follows:

1.10.1. Inter-Generational Equity

The Principle of Inter-generational Equity is an outcome of Principle 3 of Rio

Declaration, 199235. The idea behind the concept of inter-generational equity is that the
present generations to use the natural resources in such a way, so that the natural
heritage could be preserved for future generations 36. So, it is the pious duty of the
present generation to protect the cultural and natural heritage for forthcoming
generations. Since, Stockholm to BRICS Summit, 2014, it is accepted by the
international community that there should be immediate operation to accomplish
sustainable development and it is a right time to renew our commitments to sustainable
development. So far as the role of India for the implementation of inter-generational
equity principle is concerned, it could be easily said that Indian judiciary has very
enthusiastically applied the principle in decision making. The most appreciable
contribution of Indian judiciary could be seen in A.P. Pollution Control Board v. M.V.
Nayudu37. In this case, judiciary protected the rights of those who are even in the womb
of mothers. Moreover, Court observed that the rights of upcoming generations cannot
be ignored and it is the pious duty of every human being to care the globe in a sincere
manner38.

35
The right to development must be fulfilled so as to equitably meet developmental and environmental
needs of present and future generations.
36
www.legalserviceindia.com/articles/jud.htm, accessed on 28-12-14.
37
(1999) 2 SCC 718.
38
T.N. Godavaraman v. Union of India, (2000) 1 SCC 42.

13
1.10.2. The Precautionary Principle

This principle is another important principle of sustainable development. There is very

strong link between the principle and the idea that prevention is better than cure. It is
possible to avoid degradation of the environment or to minimize adverse effects by
applying stringent safeguards and the principles of sustainable development when
undertaking developmental activities. The precautionary Principle is an effect of the
Principle 15 of the Rio declaration (Earth Summit, 1992) 39. In India, precautionary
principle has been eagerly accepted by Indian judiciary and by varied administrative
agencies for the implementation of numerous environment protection and sustainable
development related laws. In Vellore Citizens Welfare Forum v. Union of India40, Court
held that precautionary principle and polluter pays principle are parallel to each other
and it has been confirmed as a part of law of the land.

1.10.3. Polluter Pays Principle (PPP)

Principle 16 of the Rio declaration, 1992 41 declares the Polluter Pays Principle as a part
of sustainable development. Initially, the principle was promoted by the Organization
for Economic Co-operation and Development (OECD) during 1970s when there was a
great public interest in environmental issues. The principle means the polluter has not
only to pay compensation to sufferers of pollution but also direct costs to people or
property. Remediation of injured environment is part of practice of sustainable
development and as such polluter is legally responsible to compensate to the individual
victims and also pay for reversing the damaged ecosystem, inspite of the fact that
whether he is involved in development process or not 42. Sometime, it is suggested that
producers may pollute as long as they pay for it but that is a complete misunderstanding
of the principle true meaning and scope. The polluter pays principle has been used as a
basis for awarding damages. In addition to assessed compensation, anyone responsible

39
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.
40
(1996) 5 SCC 647.
41
"National authorities shall endeavor 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".
42
www.legalserviceindia.com/articles/jud.htm, accessed on 28-12-14.

14
for causing pollution can be held accountable for exemplary damages, thus acting as
deterrent.

1.10.4. Public Trust Doctrine

The doctrine of public trust propounded by Professor Sax 43 and redefined by Supreme

environmental jurisprudence. Public Trust Doctrine is one of them used for settling the
serious issues relating to the environment. This doctrine is inter-related with doctrine of
inter-generational equity. It means natural resources like lakes, rivers, seashore, forests
and air are held by the State as a trustee of the public, and can be disposed of only in a
manner that is consistent with the nature of such a trust 44. Keeping in view the Public
Trust Doctrine, Apex Court held that natural resources have a great importance to the
people as a whole that it would be wholly unjustified to make them subject to private
ownership45. Therefore, the doctrine in this way imposes a duty upon the Government
to protect the natural resources for the enjoyment of the common masses rather than to
allow their use for private or commercial purposes.

1.10.5. Use and Conservation of Natural Resources

Principle 23 of Rio Declaration states that he environment and natural resources

under control shall be protected. Thus, use and conservation of natural resources is an
essential principle of sustainable development . Therefore, it is the duty of mankind to
use the earth natural resources carefully and the natural resources base must be
concerned and enhanced. It is part of our moral and ethical responsibility to other living
beings and future generations.

1.10.6. Environment Protection

Protection of environment is an essential part of sustainable development. Without

adequate environment protection, development is impossible. Only strong environment
policies complement and strengthen the sustainable development. Moreover, sustainable

43
Joseph L. Sax, The , 6 J. Land Use & Env. L. 93 (1990) as cited in
Annual Survey of Indian Law, Volume XL, 2004, p. 597.
44
Illinois Central Railroad company v. People of State of Illinois, 146 US 537 (1892), referred by
Supreme Court in Intellectuals Forum, Tirupathi v. State of AP, AIR 2006 SC 1363.
45
M.C. Mehta v. Kamal Nath, (1997) 1 SCC 388.

15
development is also one of the objects of the Environment (protection) Act, 1986.
Sustainable Development is the means to attain object and purpose of the Act and also
protection of life under Article 21. In Citizen, Consumer and Civic action Group v.
Union of India46, the Court observed that while courts have social responsibility in the
matter of environmental protection, there should be proper balance between the same
and the development activities, which are essential for progress.

1.10.7. Obligation to assist and cooperate

Ecological degradation is not a problem of a one person or that of one nation. It is a

common problem of the globe and it can be solved only with the help and co-operation
of all. Principle 9 of the Rio Declaration provides that there should be transfer of
technical knowledge essential for sustainable development. Principle 10 of Rio
Declaration provides that environmental issues are best handled with the participation
of all concerned citizen, at the relevant level. Moreover, Principle 12 of Rio Declaration
declares that every state should co-operate to promote a supportive and open
international economic system that would lead to economic system, which in turn
would lead to economic growth and sustainable development in all countries.

1.10.8. Eradication of poverty

Sustainable development deals with problem of numerous people who live in absolute
poverty and even does not know from where the next meal shall come. The developing
countries face poverty as the worst pollutant. The people in the developing countries
over-exploit their natural resources to meet their basic needs. At the Stockholm in 1972,
our Former Prime Minister, Smt. Indira Gandhi said, the
. It is rightly pointed out in Brundtland Report that, poverty reduces the
capacity to use resources in a sustainable manner. On the occasion of 20 th anniversary
of Rio Declaration, 1992, world community once again met at Rio-De-Janerio, Brazil
from 20 to 22 June, 2012, with the objective that economic growth should be in such a
way that assures the availability of sustainable food, energy and water without
degrading the ecological system. Again, it is accepted that economic development and
poverty are anti-thesis to each other.

46
AIR 2002 Mad. 298.

16
1.10.9. Doctrine of Proportionality of Risk

In the case of G. Sundarrajan v. Union of India47, Supreme Court of India deep-rooted

another principle of sustainable development i.e. Doctrine of Proportionality of Risk. It
means individual interest could be sacrificed for public interest. The doctrine could be
compared with the defence of necessity. There are certain cases in which defendant may
not be responsible even after committing an intentional wrong, the condition is that act
must be reasonable and for the prevention of a greater harm.

1.10.10. Extended Producer Responsibility (EPR)

The doctrine of EPR is an environmental policy approach and is an extension to the

polluter pays principle. But there is a difference between the two principles. As per
PPP, polluter should pay the cost of pollution and its effects, including remedial and
clean up costs. But, the question is who the real actor is? Present polluter or hidden
manufacturer (producer). EPR seek to shift the responsibility dealing from present
polluter to the entities producing it. The concept extended the liability of manufacturer
till the end of the life of the product. liability just by
selling the product. As per EPR, he will be responsible even after the sale of the
commodity. Following are the objectives of EPR:

1. Advance waste management;

2. Diminishes the burden of local bodies;

3. To produce environment friendly products.

Thus we can say that more emphasis on such principles and their implementation can
help in fighting the huge pollution problem that the globe is facing today.

1.11. SUSTAINABLE DEVELOPMENT- CONSTITUTIONAL

DEVELOPMENTS IN INDIA

Incipiently, the Constitution of India did not transact with environmental aspect, but
some of the Articles and Schedules have an indirect link with the topic. Finally, in 1976,
with the 42nd Amendment to the Constitution, two new Articles in Part-IV and IV-A of

47
Civil Appeal No. 4440 of 2013 (Arising out of S.L.P. (C) No. 27335 of 2012), Para. 228. (See;
http://www.google.co.in/search?oq=s.l.p.+no.+27335+of+2012, accessed on 29-12-12014.

17
the Constitution have incorporated. The added Article 48-A in Part- IV declares that
tate shall endeavor to protect and improve the environment and to safeguard the
forests and wildlife of the country. Similarly in Part-IV-A, Article 51 A (g), dealing
damental duty of the citizens of

Indian Constitution is feasibly one of the extraordinary Constitutions of the world which
contains specific provisions regarding environmental protection and follows the
principles of sustainable development48. Even though India is a developing country
where exploitation of natural resources is needed for the progress of nation. I
assurance to the concept of sustainable development is a part of perception reproduced
by our constitution makers in various provisions of Indian constitution. From the above
discussion it is clear that reference to the environment has also been made in the
Directive Principles of State Policy as well as Fundamental Rights. Realizing the inter-
connection between social and economic development and environment degradation,
Justice Krishna Iyer and Justice Chinappa Reddy said that the industries cannot be
allowed to run at the expense of public health.

1.12. SUSTAINABLE DEVELOPMENT-LEGAL DEVELOPMENTS IN

INDIA

The Constitutional provisions and principles of sustainable development are backed by

a number of laws acts, rules, and notifications. After the independence, lot of changes
appears in the attitude and policies of the Governments with respect to environment
protection. When the Constitution of India came into force then there were few
provisions regarding environment management like Articles 39(b), 47, 48 and 49.
Though the word environment was not directly mentioned in these provisions but from
the above Articles one can understand that the Constitution of India was not
environmentally blind49. Moreover, country adopted Van Mahotsava as a National
Festival in 1950 for the purpose of creating awareness regarding trees and forests
among people.

48
Detail is discussed in Chapter-III of the present study.
49
Upendra Baxi, Environment Protection Act: An Agenda for Implementation, Bombay, 1987.

18
The Wild Life (Protection) Act, 1972
50
. The Act provides for protection to listed species of flora
and fauna and establishes a network of ecologically-important protected areas. The Act
consists of 60 Sections and VI Schedules- divided into Eight Chapters. The Wildlife
(Protection) Act, 1972 empowers the Central and State Governments to declare any area
as wildlife sanctuary, national park or closed area. There is a blanket ban on carrying
out any industrial activity inside these protected areas. It provides authorities to
administer and implement the Act; regulate the hunting of wild animals; protect
specified plants, sanctuaries, national parks and closed areas; restrict trade or commerce
of wild animals or goods made by harming animals. The Act prohibits hunting of
animals except with permission of authorized officer when an animal has become
dangerous to human life or property or as disabled or diseased as to be beyond
recovery .

The Water (Prevention and Control of Pollution) Act, 1974 established for the
prevention and control of water pollution and the maintaining or restoring of
wholesomeness of water, with a view of carrying out the purposes aforesaid, of boards
for the prevention and control of water pollution, for conferring on and assigning to
such boards, powers and functions relating thereto and for matters connected therewith.
The Act drew forceful inspiration from the resolution adopted by the United Nations
Conference on Human Environment, held at Stockholm in 1972. The Act deals with the
Constitution of Central Board51. Section 3(3) of the Act makes it clear that the Central
Water Pollution Control Board shall be regarded as a body corporate having perpetual
succession, and a common seal, right to sue or be sued like a company incorporated
under the Companies Act, 1956. Under Section 18 of the Water (Prevention and Control
of Pollution) Act, 1974 in the performance of its functions the Central Board shall be
bound by the directions of the State Government subject to such contingencies as are
enumerated in Section 18(2) and 18(3) of the said Act 52. The Act also empowers a State
Board or its authorized officer to take sample of water for analysis and specify the

50
Substituted by Act 44 of 1991, w.e.f. 2.10.1991.
51
Section 3 of the Water (Prevention and Control of Pollution) Act, 1974.
52
Section 18 of the Water (Prevention and Control of Pollution) Act, 1974.

19
procedure after the sample has been taken for analysis 53. Like the Central Government,
State Government has also the power by notification in official gazette to establish a
State Water Laboratory54. On the other hand Central and State Governments by
notification in the official gazette have power to appoint government analyst having the
prescribed qualifications for the purpose of analysis of samples of water or of sewage or
trade effluents and to send it for analysis to any laboratory established under
Central/State Government as the case may be 55. From the above discussion, it is
apparent that the present Water (Prevention and Control of Pollution) Act, 1974 is a
special legislation meant to deal with the measures necessary for prevention and control
of water pollution.

The Forest Conservation Act, 1980: Forestry is an important place in the lives of
people and environment preservation. A vast majority of India's population is acutely
dependent on forests for meeting basic needs of fuel wood, fodder, timber for housing
and agricultural implements, and food and medicines in the form of wild fruits, roots,
herbs and so on. For the protection of forests and use of forest land for industrial and
commercial purposes, the Parliament of India enacted the Forest (Conservation) Act,
1980. The Act provides that no State Government or other authority shall make, except
with the prior approval of the Central Government, any order directing that any forest
land or any portion thereof may be cleared of trees which have grown naturally in that
land or portion, for the purpose of using it for reforestation 56. Further, Central
Government may constitute a committee with regard to, any matter connected with the
conservation of forests, which may be referred to it by the Central Government 57. The
Act also provides that, whoever contravenes or abets the contravention of any of the
provisions of Section 2 shall be punishable with simple imprisonment for a period
58
which may extend to fifteen days .

The Air (Prevention and Control of Pollution) Act 1981- To implement the U.N.
Conference on Human Environment held in June, 1972 at Stockholm and for
53
Section 21 of the Water (Prevention and Control of Pollution) Act, 1974.
54
See. Section 52 of the Water (Prevention and Control of Pollution) Act, 1974.
55
Section 53(1) and 53(2) of the Water (Prevention and Control of Pollution) Act, 1974.
56
Section 2 (iv) of the Forest (Conservation) Act, 1980.
57
Section 3 (ii) of the Forest (Conservation) Act, 1980.
58
Section 3-A of the Forest (Conservation) Act, 1980.

20
preservation of the quality of air and to control the air pollution, the Parliament of India
passed the Air (Prevention and Control of Pollution) Act, 1981, under Article 253 of the
Constitution of India 59. The Act was enacted to provide for the preservation, control and
abatement of air pollution and for the establishment of Central and State Pollution
60
Control Boards. This Act was amended in 1987 to include noise pollution. Under this
Act, where an offence has been committed by any company61 shall compel every person
who were involved in it or were in charge of it and were responsible to the company for
the conduct of the business of the company, as well as the company shall be deemed to
be guilty of the offence. However, if the person liable to be punished proves that the
offence was committed without his knowledge or that he exercised all due diligence to
prevent the commission of such offence, he will not be made liable for any punishment
under the Act 62.

Apart from Air Act, there are other legislations also which are playing pivotal role for
the preservation of environment from air pollution, i.e. Orient Gas Company Act, 1857,
Factories Act, 1948, The Motor Vehicles Act, 1988, The Atomic Energy Act, 1982 etc 63.

Further, in 1982, the Air (Prevention and Control of Pollution) Rules defined the
procedures of the meetings of the Boards and the powers authorized to them.

A comprehensive legislation Environment (Protection) Act, 1986 (EPA) was enacted

by the Parliament for the purpose of empowering the Central Government to take all
essential steps to protect and improve the environment, life of human beings, other
living creatures, plants and property. The Act came into force soon after the Bhopal Gas
Tragedy occurred and is considered an umbrella legislation as it fills many gaps in the
existing laws. EPA is divided into four chapters. First chapter of EPA deals with
application of the Act, which provides that EPA applies to whole of India. In the second
chapter, the Act provides powers to Central Government to coordinate the activities of
various Central and State authorities established under previous laws and provide power
to the central government to take measures to protect and improve environment. Third

59
Article 253 of the Constitution of India empowers the Central Government to make laws for
implementing decisions taken at international conferences.
60
Act 47 0f 1987, w.e.f 1.4.1988.
61
Company means body corporate, and includes a firm or other association of individuals).
62
Section 40 of the Air (Prevention and Control of Pollution) Act, 1981.
63
Others Acts relating to Air Pollution have been discussed in the Chapter IV.

21
chapter of the Act deals with different provisions regarding the prevention, control and
abatement of environment pollution. The fourth chapter of the Act held that all officers
and other employees of such authority when acting or purporting to act in pursuance of
any provisions of this Act or the rules made or orders or directions issued there under
shall be deemed to be public servants within the meaning of Section 21 of the Indian
Penal Code, 1860. The Act also delegates the powers to the executive and to enable
bureaucrats to frame necessary rules and regulations. From the above discussion it is
clear that EPA is a comprehensive legislation, enabling to protect and preserve the
environment. In the same year, the Environment (Protection) Rules were made by the
Central Government exercising the powers conferred by Section 6 and 25 of the
Environment (Protection) Act, 1986.

Further, the National Environmental Tribunal Act, 1995 has been created to award
compensation for damages to persons, property, and the environment arising from any
activity involving hazardous substances.

The National Environment Appellate Authority Act, 1997 has been created to hear
appeals with respect to restrictions of areas in which classes of industries etc. are carried
out or prescribed subject to certain safeguards under the Environment Protection Act,
1986.

In 1999, the Environment (Siting for Industrial Projects) Rules laid down detailed
provisions relating to areas to be avoided for siting of industries, precautionary
measures to be taken for site selecting and also the aspects of environmental protection
which should have been incorporated during the implementation of the industrial
development projects.

In 2007, the Scheduled Tribes and Other Traditional Forest Dwellers Rights
(Recognition of Forest Rights) Act, has been enacted with the challenge to achieve the
rather difficult balance between livelihood security and ecological conservation, which
has eluded most conservation or development programmes in India so far.

Recently our government has shown the concern of environment protection by

introducing The National Green Tribunal Act, 2010. This Act was introduced by the
then Environment and Forest Minister Jairam Ramesh. The Act established the
National Green Tribunal for the persuasive and speedy clearance of cases relating to
environmental preservation and safeguard of forests and other natural resources

22
including implementation of any legal right concerning environment and giving relief
and compensation for damages to persons and property. Undoubtedly, the initiative of
National Green Tribunal under the National Green Tribunal Act, 2010 has a great step
in environmental litigation.

Apart from the above legislations, India framed an extent of regulatory mechanisms
backed by the principles of sustainable development for the preservation and protection
of its natural resources. There is no doubt that the legislature has passed a number of
laws for the protection of environment like Environment (Protection) Act 1986, Water
(Prevention and Control of Pollution) Act, 1974 and the Air (Prevention and Control of
Pollution) Act 1981 etc. Apart from these laws there are several other enactments,
which supplement the provisions of basic enactments 64 has been passed by the
Legislature and Executive and this process is continuing with the Road Transport and
Safety Bill, 2014 and the Pesticides Management Bill, 2008 (Bill No. XLVIII of 2008)
introduced in the Rajya Sabha.

1.13. JUDICIAL RESPONSE

The work done by Indian Judicial System is really praiseworthy in context of

environment protection and sustainable development. The legislature recently has
started talking about sustainable development in some of the enactments. But, mainly
the acclaim for making sustainable development

sustainable development has become the important part of environmental law of our
country along with certain other principles such as Polluters Pays Principle65,

64
The Environment Protection Rules, 1986; The Objectives of Hazardous Waste (Management &
Handling) Rules, 1989; The Public liability Insurance Act and Rules and Amendment, 1992; The Bio-
Medical Waste (Management and Handling) Rules, 1998; The Environmental (Siting For Industrial
Projects) Rules, 1999; Municipal Solid Wastes (Management and Handling) Rules, 2000; The
Batteries (Management and Handling) Rules, 2001; The Noise Pollution (Regulation and Control)
(Amendment) 2002; Oriental Gas Company Act, 1857; Indian Penal Code, 1860; The Forests Act
1865; Sarais Act, 1867; The Northern Indian Canal and Drainage Act, 1873; The Forest Act of 1878;
The Elephants Prevention Act of 1829; Explosives Substances Act, 1908; Indian Air Craft Act, 1934;
Indian Petroleum Act, 1934; Mines Act and Inflammable Substances Act, 1952; Insecticides Act,
1968; Atomic Energy Act, 1962 etc. (Detail is discussed in Chapter-IV of the Present Study).
65
Principle 16 of the Rio declaration states "National authorities shall 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."

23
Precautionary Principle 66, Intergenerational Equity67, Public Trust Doctrine68,Doctrine
of Proportionality of Risk and the principle of Extended Producer Responsibility . From
Ratlam Municipality v. Vardichand AIR 1980 SC 1633 to M/s. Shiv Guru Stone Works
and Another v. State of Jharkhand and Others, AIR 2014 Jharkhand 28, Para 7, Indian
judiciary applied the principle of sustainable development while deciding the cases.

The positive signal of environment protection by Indian judiciary was set out even prior
to the inclusion of Article 51-A in our Constitution. Apex Court held that the industries
cannot be allowed to run at the expense of public health 69. Believing upon the theory of
sustainable development, Calcutta High Court in People United for Better Living in
Calcutta-Public v. State of W.B70 observed that there should be a proper balance
between the protection of environment and the development processes: the society shall
have to advance, but not at the cost of the environment and in the similar tone, the
environment shall have to be protected but not at the cost of the development of the
society- there shall have to be both development and proper environment and as such, a
balance has to be found out and administrative actions ought to proceed in accordance
thereafter.

The same approach was adopted in Indian Council for Enviro-Legal Action v. Union of
India71 where the Apex Court certify its faith to establish a stabilized development and
held that no activities which would ultimately lead to irrational and unsustainable
development and ecological devastation should at all be allowed and courts must
carefully try to protect the ecology and environment and should shoulder greater
responsibility of which the court can have closer awareness and easy checking.

66
This principle has widely been recognized as the most important principle of 'Sustainable
Development'. Principle 15 of the Rio declaration states, "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."
67
Principle 3 of the Rio Declaration. The main object behind the principle is to ensure that the present
generation should not abuse the non-renewable resources so as to deprive the future generation of its
benefit.
68
This doctrine is inter-related with doctrine of inter-generational equity. It means natural resources
like lakes, rivers, seashore, forests and air are held by the State as a trustee of the public, and can be
disposed of only in manner that is consistent with the nature of such a trust.
69
Ratlam Municipality v. Vardichand AIR 1980 SC 1633
70
AIR 1993 Cal 215, (1993) 1 Cal HN: (1993) 1 Cal LJ 105.
71
(1996) 5 SCC 281.

24
In the case of Narmada Bachao Andolan v. Union of India,72 the Supreme Court
expounded the theory A balance is
required to be maintained in the development and protection of environment. Every
Moreover, Court while
dealing with the public projects and policies held that court does not be approves
authority for such projects. Here once again, one may refer to the positive approach of
the Supreme Court adopted in e73 where the court gave preference to
the human need for drinking water over and above the possible economic benefit that
could be created by the industry for the state. At the same time, the Supreme Court in
Goa v. Diksha Holding Pvt. Ltd.74 made the society aware about its responsibility
towards the future generations so as to allow normal breathing and living in cleaner
environment but that does not by itself mean and imply stoppage of all projects 75.

Both Naydu and judgments have surely established the presence of sustainable
development as a fundamental principle of environmental law, though they render a
little but material guidance to ensure proper balancing. The decision in Naydu can be
used as a precedent holding for primacy of human needs while in Diksha holding the
decision for giving weight to claims of development where the social interest have no
priority76.

Further, the Apex Court in M.C. Mehta v. Union of India77 applied the concept of
sustainable development to the plenary extent. The Court in this case, fixed a time limit
for some cities to switch over diesel vehicles to CNG vehicles within specified time
limit. The concept also finds support from the Supreme Court in a number of cases 78

72
2000 (10) SCC 664
73
(2001) 2 SCC 62, P.87.
74
(2001) 2 SCC 97.
75
Ibid 108.
76
J. Talib Constitutionalising the problem of Environment Journal of Indian Law Institute, edn.,
2005, p.522.
77
AIR 2002 SC 1696.
81. State of H.P v. Ganesh Wood Products, (1995) 3 SCC 363; M.C. Mehta v. Union of India (1997) 2
SCC 653 (Taj Trapezium Case); M.C. Mehta v. Union of India and Others (1996) 4 SCC 351; M. C.
Mehta v. Union of India and Others (2004) 6 SCC 588; M.C. Mehta v. Union of India and Others
(2005) 2 SCC 186; M.C. Mehta v. Kamal Nath and Others (2005) 1 SCC388; Sushanta Tagore and
Others v. Union of India and others (2005)3 SCC 16; Friends Colony Development Committee v.
State of Orissa and Others (2004) 8 SCC 392 Para 27; Virender Gaur and Others v. State of
Haryana and Others (2004) 8 SCC 733

25
where the Supreme Court has realized that ecological factors indisputably are very
relevant considerations in construing a developmental process such as town planning
etc.

In the case of T.N. Godavarman Thirumulpad v. Union of India and Others79 Supreme
Court had shown the faith on the Principles of Sustainable Development. After
analyzing both the aspects i.e. preservation of Niyamgiri Hills-only wildlife habitat,
which may be vitally affected if mining is allowed, and picture of utter poverty in which
local people (including tribal people) are living, the Supreme Court adopted the
approach of Sustainable Development. Court is not against the project, but it could not
take risk of placing an important national asset into hands of applicant company. It is
the only safeguard by which we are able to protect nature and sub serve development
and the Supreme Court has once again shown the faith on the principles of sustainable
development and proves India to be committed with its Principles.

In the case of Tirupur Dyeing Factory Owners Association v. Noyyal River Ayacutdars
Protection Association and Others80, Apex Court held that development of industries,
irrigation resources and power projects are necessary to improve employment
opportunities and generation of revenue but balance has to be maintained between
development and preservation of natural resources so as to see that environment is not
damaged irreparably, which may in turn cause irreparable damage to economic
interests. Moreover, S
responsibilities to meet out the expenses of reversing the ecology. The Court further
held
along with the doctrine of sustainable development.

Moreover, in case of T.N. Godavarman Thirumulpad v. Union of India and Others,81

the Court suspended all mining operations in the Aravalli Hill rage. It was stated by the
State of Haryana that a complete ban on mining minerals could cause scarcity of
building materials and the construction of roads and buildings and other development
activities would be seriously affected. Supreme Court held that any mining activity in

82
(2008) 2 SCC 222.
80
(2009) 9 SCC 737.
81
(2010) 1 SCC 500.

26
Faridabad 600 ha of land within identified or earmarked area shall be subjected to the
directions CEC and State of Haryana. Another sustainable development inspired
decision of Apex Court is M. Nizamudeen v. Chemplast Sanmar Limited and Others82.
Supreme Court, keeping in mind the sustainable development concept, held that the
Coastal Zone Management Plan prepared by State Coastal Management Authority and
duly approved by MoEF is the relevant plan for identification and classification of CRZ
areas. Court further held that 1996 plan for the purposes of demarcation and
classification of CRZ area in the State of Tamil Nadu should be treated as final and
conclusive83. Moreover, Uppanar River and its banks, where the pipelines were laid by
Chemplast pass do not fall under CRZ III area. No environment clearance is needed for
such pipelines. No infirmity in permission is granted by MoEF or Executive Engineer.
Court held that the project concerned had been established by huge investment of
appox. Rs. 600 crores, commissioned after obtaining necessary approvals, therefore,
interference was justified neither in interest of justice nor in public interest.

In the case of Samaj Parivartana Samudaya & Others v. State of Karnataka and
Others84, the issue before the court was whether recommendations given by CEC with
regard to (i) Categorization, (ii) Reclamation and Rehabilitation Plans, (iii) Reopening
v)

that in the light of the discussions that have preceded, sanctity of the procedure of
laying information and materials before the Court with regard to the extent of illegal
mining and other specific details in this regard by means of the Reports of the CEC
(Central Empowered Committee) cannot be in doubt. Inter-generational equity and
sustainable development have come to be firmly embedded in our constitutional
jurisprudence as an integral part of the fundamental rights conferred by Article 21 of the
Constitution. In enforcing such rights upon a large number of citizens who are bound to
82
(2010) 4 SCC 240.
83
In Indian Council for Envior-Legal Action Case (1996) 5 SCC 281, the State of Tamil Nadu
submitted its Coastal Zone Management Plan to the MoEF on 23-8-1996 which was approved on 27-
9-1996 (1996 Plan) containing 31 sheets corresponding to maps for different stretches of the
coastline of the State of Tamil Nadu with certain conditions/modifications/classifications. Sheet No.
10 pertains to the coastal stretch of Cuddalore District. From Copy of sheet No. 10 it does not
transpire that Uppanar River and its banks where the pipelines pass have tidal influence and come
under the CRZ area.
84
AIR 2013 SC 3217 (Para-41).

27
be adversely affected by environmental degradation, this court cannot be constrained by
the restraints of procedure. The CEC which has been assisting the Court in various
environmental related matters for over a decade now was assigned certain specified
tasks which have been performed by the said body giving sufficient justification for the
decision arrived and the recommendations made. The said recommendations can
withstand the test of logic and reason, we will have no reason not to accept the said
recommendations and embody the same as a part of the order. Recently, in the case of
M/s. Shiv Guru Stone Works and Another v. State of Jharkhand and Others85, the order
dated 14-7-2012, passed by the Assistant Mining Officer, Giridih regarding refusal to
renewal of mining lease on the ground of non-obtaining environment clearance. Court
without interfering with the impugned order, the writ petitioners are allowed to
approach the State Level Environment Impact Assessment Authority (SEIAA) for
seeking grant of environmental clearance for the area in respect of which they are
seeking renewal of mining lease.
Further, in the case of Vardhaman Kaushik v. Union of India86, National Green Tribunal
noted that despite the directions of the Apex Court, ambient air quality of the NCT,
Delhi is decreasing day by day.

No doubt that the concept of sustainable development has emerged for the protection of
environment. The need to protect the environment was emphasized way back in the
Fourth Five Years Plan (1968-73). The Plan document recognizes the interdependence
of living things and their relationship with land, air and water. Since then the
environmental dimension has been added to the entire process of national development.
The development plans of all sectors are consistent with the concept of Sustainable
Development. The objective of all developmental programs is to achieve environmental
harmony, economic efficiency, and equity with social justice, conservation of resources
and local self-reliance87. Indian judiciary has always shown its faith on the principles of
sustainable development, which is evident from the decisions of the Apex Court, High
Courts of States and from constitutional provisions which has been discussed by the
researcher in the third and fifth chapters.

85
AIR 2014 Jharkhand 28, Para 7.
86
Original Application No. 21 of 2014.
87
www.gandhimuseum.org/sarvodaya/articles/kavita_suchak.htm, accessed on 11-08-2008.

28
1.14. STATEMENT OF PROBLEM

Sustainable development is an objective, which we are continuously attempting for.

This calls for an urgent need to bring about necessary changes in the industrial and
agricultural production patterns, utility services, consumer behavior and life styles of
the people keeping in view our social and developmental priorities for conservation
and sustainable use of natural resources. Sustainable development is a good concept
and India has also adopted it. Undoubtedly a number of laws have been enacted
regarding environmental protection, which is backed by principles of sustainable
development. However, the sustainability of Indian cities is frustrated by special
factors such as inadequacy of capital stock, poverty and environmental degradation.
Number of factors are responsible for the degradation of environment like water, air,
radio-active wastes and noise pollution etc. but in the present research, field of study
on air pollution with regards to Ludhiana city has been taken. Ludhiana, an industrial
City sometimes also called the Manchester of India , is one of the fastest growing
metropolitan areas with a growth rate of about 70% per decade. The city is centrally
located in the State of Punjab and is widely accessible due to its proximity to G.T.
Road and railway corridors. Ludhiana industrial power is source of pride for the State
of Punjab as well as for the country as a whole. But the present environment status of
Ludhiana is that the city is growing haphazardly, resulting in serious congestion and
pollution from motor vehicles.

1.15. SIGNIFICANCE OF THE STUDY

In developing countries like India, a special challenge is to stimulate developmental

processes at the local level, but in reality developing world is suffering from the
environmental problems, which are clearly linked to imbalanced development. The
problem of environmental pollution has drawn the attention of entire world and the
governments of all the nations are trying to protect and enhance the quality of
environment. Infact it has become a global phenomenon. In India, a plethora of
legislations have been passed by the legislature and the executive is also trying to
tackle the problem of environmental pollution, but in reality environment protection
laws have only a little impact, particularly in major cities which are tremendously

29
affected by environmental pollution. In this research, the researcher focuses on the city
of Ludhiana.

1.16. OBJECTIVES AND PURPOSE OF THE STUDY

The following are the objectives of the present study:

To analyze the concept of sustainable development and its legal ingredients.

To examine the various principles considered to be the part of sustainable

development.

To investigate the recognition of the concept of sustainable development under

international instruments.

To review the status of legal developments, national, international legal

measures, shortcomings in them.

To examine the views taken by the judiciary regarding the concept of

sustainable development.

To review the problems and gaps in implementation of the present policy of the
Indian Government regarding concept of sustainable development.

To understand the problems and gaps those are hindering the sustainable
development of Ludhiana city.

To suggest the initiatives required to achieve the goal of sustainable

development with reference to Ludhiana City.

1.17. REVIEW OF EXISTING LITERATURE

For the fulfillment of this research the researcher has reviewed various international
treaties, conventions, conferences, legislations passed by Parliament of India, views
taken by Indian judiciary and other judiciary regarding environment protection
and sustainable development. Moreover, number of reports, books, articles, journals,
magazines, newspapers and data on internet are reviewed by researcher. The review of
literature has been prepared keeping the major points of the research in mind. These
sources are given as under:
30
The Stockholm Conference, 1972, in which India participated, marks water shed in the
evolution of environmental jurisprudence. After the said conference, India has taken a
lead among all the developing nations to have different Constitutional 88, administrative,
regulatory and legal measures for the protection and conservation of the environment
for sustainable development. The Water (Prevention and Control of Pollution) Act,
1974; The Air (Prevention and Control of Pollution) Act, 1981; Environment
(Protection) Act, 1986; the Motor Vehicle Act, 1988; The Noise Pollution (Regulation
and Control) Rules, 2000; the National Green Tribunal Act, 2010 etc. are few
legislations, which represents the Indian commitment for the concern of environment
protection and sustainable development. Apart from these statutes there are several
other enactments, which complement the provisions of basic enactments are reviewed
by the researcher.

The credit for making sustainable development as one of the deeply ingrained principle
The emphasis of the judiciary has been on

The judiciary while inte

Article 21 of the Constitution has now approved the right to live in pollution free and
healthy environment as fundamental rights 89. From Ratlam Municipality v. Vardichand
AIR 1980 SC 1633 to M/s. Shiv Guru Stone Works and Another v. State of Jharkhand
and Others, AIR 2014 Jharkhand 28, Indian judiciary applied the principle of
sustainable development while deciding the cases and this process is continued.

1.17.1. Books

Sustainable Development of the Biosphere90 by Clark W. and Munn R, authors have

observed that the ideas underlying the concept of sustainable development have a long
history in international legal instruments and the term itself began to appear in treaties
in the 1980s. The term has been invoked by various international courts and tribunals

88
Article 48-A, 51-A(g) were added by 42nd Amendment Act, 1976.
89
See R.L.E. Kendra Dehradun v. State of UP. AIR 1985 SC 652, L.K. Koolwal v. State AIR 1988 Raj
2, Charan Lal Sahu v. Union of India, (1990) 1 SCC 613, F.K. Husain v. Union of India, AIR 1990
Kerala 321, Subhash Kumar v. State of Bihar, (1991) SCC 598.
90
Cambridge: Cambridge University Press, 1986

31
and is established as an international legal concept. There are four recurring elements
appear to comprise the legal elements of concept of sustainable development which are
reflected in international agreements. The ingredients are: intergenerational equity;
sustainable use and conservation of natural resources; precautionary principle ;
intergenerational equity and integration.

International Law and Sustainable Development: Past Achievements and Future

Challenges91 by Boyle. E. Alan and David Freestone (ed.), is a collection of essays that
cover some of the most important contemporary issues in contemporary law relating to
sustainable development, the utilization of natural resources and protection of the
environment written by well-known experts on these topics who includes judges of
International Court of Justice and the International Tribunal for Law of Sea, Legal
Advisers from International Organizations such as the World Bank, The International
Maritime Organization and Food and Agriculture Organization and Practitioners of
International Law as well as some of the leading scholars writing on International
Environmental law and related subject. This book covers many of major developments
that have taken place since the United Nations Conference on Environmental
Development held in Rio-de- Janeiro in 1992. The contributions bring new perspectives
on sustainable development as a legal principle, the role of International Law
Commission in codifying International Environmental Law, the Protection of Marine
Environment etc. The area of present study is based on original research work.

World Enough and Time92, by Repetto Roberto has observed that the idea of
sustainability is that the current ideas should not harm the predictions for maintaining or
improving future living standards.

The Oxford Handbook of International Environmental Law 93 by Bodansky Daniel,

Brunnee Jutta and Hey Ellen have observed that the concept of sustainable development
evolved over many years through attempts to take account of concerns regarding
economic development, environmental protection and social development.
91
Oxford printing Press, UK, 1999
92
New Haven: Yale University Press, 1986
93
Oxford University Press, U.K., 2006.

32
Environment and Sustainable Development 94 by M.K. Satapathy has observed that

achieving sustainable development are: A political system which secures efficient

articipation in decision-making. A social system which provides solutions of
problems arising from disharmonious development. A technological system which can
search for new solutions. An administrative system which is flexible and which has
ability for self-correction.

The Principle of Sustainability Transforming law and Governance 95 by Bosselmann

Klaus has explained that sustainable development has emerged as the dominant theme
in environmental governance. The concept of sustainability has been known for
hundreds of years, is consistent with the Brundtland Report and more recent
Secretary General.

An introduction to Sustainable Development 96 by Elliot Jennifer A. has observed that

critical objectives for sustainable development as identified by World Commission on
Environment and Development (WCED) are to revive growth, change the quality of
growth, meet essential needs for jobs, food, energy, water and sanitation, ensure a
sustainable level of population, conserve and enhance the resource base, reorientate
technology and manage risk, merge environment and economics in decision making.
There are three pillars of sustainable development: environmental, economic and social
which are interdependent.

Environment and Wildlife Laws in India 97 by Arya B Majumdar, Debosmita Nandy

& Swayambhu Mukherjee, explained that Industrial revolution is considered as the

man with means to a greater and more convenient future. After experiencing of
progressively extreme weather patterns, denudation of pristine Himalayan forests and a
gradual decline in air and water quality in developing nations have led the authors to
believe that there is still a long way to go for preservation of our environment and that

94
Shipra Publications, Delhi, 2007.
95
Published by Ashgate Publishing Limited, England, 2008.
96
The Taylor and Francis Group, New York, 2006.
97
Lexis Nexis - A Division of Reed Elsevier India Pvt. Ltd. 2013.

33
the present and future generations must be sensitized and made aware of the
environmental risks at hand. Moreover, this book has attempted to cover as much
ground as possible by focusing not only on the laws as they exist today, but also on the
reason behind their enactment.

Environmentally Sustainable Economic Development 98 by Asayehgn Desta, in this

book, the author proposed to ask that can sustainable economic development be
achieved without strong environmental protections? Bringing together theoretical issues
in economic development with wide range of empirical evidence, this book examines
this question and explores ways in which environmental sustainability might be
incorporated into the existing theories of economic development. Protection of
environment is an essential part of development and the best chance for achieving long-
term sustainable development is to systematically incorporate environmental issues on
the key aspects of economic development paradigms. To show this, Desta makes use of
theoretical approaches, draws policy implications and illustrates each point with in
depth case studies from developing countries but practical questions in the given
situations are yet to be answered.

Environmental Law99 by Ashwin N. Karia, in this book the author advised that all
mankind is only trustee of all its natural resources. Hence, all of us should take every
precaution to ensure the interests and rights of all of us as we are equal partners on
earth. Therefore, we are duty bound as not to abuse, misuse, pollute or distort our
natural resources as each succeeding generations is entitled to benefit from these. In
short water, land, soil, vegetation, birdlife, and the animal kingdom deserves our
attention and care which are of utmost importance for the perpetuation of sustaining
lives on earth. This book emphasizes upon the constitutional status, regulatory laws,
promotional policy framework, organizational structure of the regulating bodies for
environment management, international agreement for environment protection and
sustainable development to which India is a signatory. The idea of present study is
different from this book.

98
Published by Greenwood publishers, Praeger, September 30, 1999.
99
C. Jamnadas and Company, Educational and Law Publishers, Mumbai, 2008.

34
Environmental Challenges100 edited by C.K. Varshey and Dr. Sardesai has
highlighted the recognition of environment as an important consideration for economic
development has been the most remarkable realization of this century and it is likely to
be of increasing significance for the 21 st century and beyond as revealed by the book.
Owing to the increasing population and growing consumerism, the demand of
environmental resources is fast outstripping the carrying capacity of the biosphere.
Prolonged disregard of nature and cumulative impact of industrialization, misuse and
over use of natural resources has resulted in a severe backlash represented by soil
degradations, global warming, depletion of stratospheric ozone, environmental
pollution, loss of bio-diversity and economic disparities. Environmental problems are
transnational and Transgenerational in character and require Tran disciplinary holistic
approach. The complex issues posed by rapid environmental degradation have forced us
to re-examine the relationship between natural environment and human systems. The
area of focus in the present study is however not gone through in this book.

Environmental Law101 by Dharmendra S. Sengar, emphasizes that our environment is

faced with the twin pressure of population and development, resulting in its
deterioration and depletion of the natural resources at an alarming fast rate. Besides the
traditional pollutants, the strain of unchecked effluents and emissions from hazardous
industries has caused pollution of the environment and consequent human health
hazards. The reckless industrial growth may lead to an over-exploitation and destruction
of natural resources to such an extent that our future generations may discover that life
support system has been damaged beyond repair. Therefore, there is a need for striking
a balance between environment and development so that we may have sustainable
development. Mr. Dharmendra Sengar concentrates on some important concepts such as
the crucial problem of environmental pollution which traces the origin of constitutional
support to protection of environment, and deliberates on the relationship between
industrialization for economic growth and environmental protection for human health;
detailed study of pollution- caused hazardous chemicals and toxic wastes, and the
consequent human health hazards; a survey of past and present legislative attempts to

100
Wiley Eastern Limited, Publishers, New Delhi, Banglore, Luknow, Madras, Bombay, 1993.
101
Prentice Hall of India Private Limited, New Delhi, 2007.

35
prevent and control the large scale use of hazardous substances and discharge of toxic
wastes during industrial processes; civil law action for preventing industrial and has
critically examined the statutory provisions for preventing and controlling water
pollution and air pollution, respectively; problems of environmental compliance and
enforcement machinery with a view to suggesting solutions to alleviate the problems;
role of judiciary and legislature for environment protection. But the area of focus in
present study is however not gone through.

Environmental Law102, by Dr. J.J.R. Upadhyay, has thrown light on environmental

regime in India and also projects international jurisprudential trends to restore
environmental equilibrium. The journey from the Stockholm to the Rio Summit led to
the recognition that all human beings are entitled to a healthy and productive life in
harmony with nature. To materialize this vision, the concept of sustainable development
came to be recognized and operationalzed. It was such factor which was responsible for
the enactment of various environmental laws in India, that are designed not only to
preserve and protect environment but also to prevent environmental pollution. In the
enforcement of these laws, the Indian judiciary has played a seminal role and used
Public Interest Litigation as a convenient tool to create a new environmental
jurisprudence.
103
by Dr. N. Maheshwara Swamy, has discussed
the major area of concern that environmental pollution is a global problem. Even the
developed countries are not an exception to the adverse affects of the increasing global
warming. The unexpected cyclones, tsunamis, thunders and floods are the direct
consequences of this adverse phenomenon. The attention of the present world is
apparently diverted to the urgent need for protecting the environment. Successively
convened national and international Conferences, seminars, awareness programmes
relating to the environmental protection and the consequential measures for undertaking
the enforcement steps, have remained only as theoretical fantasies. The existing
programmes and policies governing environmental protection through law and
executive decisions remind one of the examples of a goods train running on a track, but

102
Central Law Agency, Allahabad-2, edn., 3 rd, 2012.
103
Asia Law House, Hyderabad, 2007-08.

36
without an expert driver. The train is running on its own, and the driver has no control
over it, inspite of the fact that the train has all the requisite control tools and equipment.
The ultimate victim is the man and his environment. Keeping in view the above aspects
and also with a view to bring out a small but informative textbook containing measures
provided for the protection of environment from pollution at national and international
level through laws and policies at a glance, for the use and benefit, especially of the
students of law. The book received due appreciations of the learned readers. But the
area of present study has not given due consideration in this book.

Environmental Law104 by Dr. S.C. Tripathi, this book deals with Constitutional,
legislative, judicial and international efforts for the protection of environment. The
author emphasizes that the right to pollution free environment is regarded as a
fundamental right under Article 21. The judicial activism in matters relating to
environment exhibits the anxiety of the courts in India and the society in finding out
adequate and effective remedies for environmental problems. It is true that in recent
past we have caused considerable damage to environment all around on account of
industrialization, urbanization and population explosion at global level and spirit. The
environmental scientists have issued the note of caution repeatedly regarding
degradation of environmental standards which have reached at dangerous level mainly

environmental quality found expression in the decision taken at United Nations

Conference on Human Environment of Stockholm, 1972. We have witnessed a number
of legislative endeavours for the purpose of protecting, controlling and improving
environment. It is highly regretted that despite legislative measures we are utterly
failing to bring wide spread environmental awareness among public at large. On a an
number of occasions the Supreme Court of India has passed directions to the
government to introduce and inculcate environmental consciousness from the primary
school level to the university level. But we are yet to follow the directions of the

subsequently dealt with.

104
Central Law Publications, Allahabad, 2004.

37
Environmental and Pollution Laws in India105 by Justice T.S. Doabia, this book
deals with various aspects of environment. The concept of sustainable development,
precautionary principle and polluter pays principle have become part and parcel of the
Indian judicial system. The author further deals with the constitutional rights available
to a citizen of India and as to one, who can come forward to sustain and enforce these
rights, have been elaborated. As a matter of fact all the topics regarding which concerns
have been shown in the national environment policy have been incorporated. The role
played by the United Nations Organization at the world level is equally credible. This
has motivated the powerful and developed nations to come to a conference table and
they have been forced to deal with the subject seriously. Efforts have been made to deal
with all aspects of pollution in this book. The case law as developed in England,
America and India stands digested. Some important decisions given by the European
Council have also been included at appropriate places. There is no doubt, Justice
Doabia has done a praiseworthy work in the field of environment and definitely this
book has proved to be very helpful to all who belong to the field of law. But the idea of
present research has not been put in focus.

Environmental Law: Environment Protection, Sustainable Development and the

Law106 by P.S. Jaswal and Nistha Jaswal, have attempted to address about
environment protection and its preservation is of major concern. Author emphasized
that if the quality of life is to be assured to the present generation and if the future

the form of flora and fauna has to be preserved in its natural form. The proper balance
of the eco-system is the need of the hour. The only answer to tackle this problem is
sustainable development. But the law alone cannot tackle the problem of pollution.
There has to be awareness of the problem and sustained efforts are required to tackle it.
This book is very useful for environmental protection and introduces to the problem of
sustainable development but useful answers are still to be given.

Environmental Protection107, by Prof. (Dr.) A.K. Thukral & G.S. Virk, authors have
observed that exponentially increasing population, depleting resources and deteriorating

105
Wadhwa and Company, Nagpur, New Delhi, 2005.
106
Pioneer Publications, Chennai, 2006.
107
Scientific Publishers, Jodhpur, 2000.

38
environment have put the world on the threshold of misery. The problem has been
further aggravated by transition from man to machine, thereby putting at stake the
human hazards. The Bhopal Gas tragedy, Chernobyl nuclear disaster, increasing
incidence of Cyclones, floods, fires and droughts are just a tip of the iceberg in the late
20th century history of humankind. The scientists world-over are worried over the fate
of man to be determined by the lethality of two silent killers, increasing pollution and
dwindling biodiversity. This book is a collection of Articles by these authors but many
concerns, especially legal measures have not been considered.

Environment Protection and the Law108, by R.K. Khitoliya, in this book the major
area of concern is to address the problems of environmental degradation and it
emphasizes the need of legal instrument to protect the same. The important judicial
pronouncement has also been added besides the emphasis on the need of the role of
The book integrates the various aspects of environmental
pollution control to tackle environment problems for achieving sustainable
development. The area of focus in the present study has however not been discussed in
this book.

The Economics of Development and Planning109, by R.K. Lekhi, this book deals with
the basic nature of economic development, theories of economic development, growth
models, internal and external resources, economic planning techniques, planning
process in India and development problems. The author emphasizes that sustainable
development refers to development, which should keep going. It is the creation of
sustainable improvement in the quality of life of all people through the increase in real
income per-capita, improvement in education, health and general quality of life and
improvement in quality of natural environmental resources. The area of focus in the
present study has however not gone through.

Environment Protection and Sustainable Development110, by S. Bhatt, this book

relates to an important and emerging field of research in sustainable development and
environmental protection. It offers new ideas in law and science for sustainable
108
A.P.H Publishing Corporation, New Delhi, 2005.
109
Kalyani Publishers, New Delhi, 2005.
110
A.P.H. Publishing House, New Delhi, 2004.

39
development that humanity is exploring for life on this planet. The themes of Rio UN
Conference of 1992 and UN World Summit for Sustainable Development 2002 relate to
developing new economics based on the ecology of earth and with the assistance of new
ideas of science for ecological use of resources of earth. Thus, subjects of ecology and
international law are being combined along with federalism for management of global
resources. This book has focused on these new fields. It describes the global
environment movement, the environment movement in India, the Centre-State relations
on environment management, the administrative working of the Ministry of
Environment and Forests, the working of Environment Protection Act 1986 in India,
combining law and science in environment management, the World Charter for Nature
1982, the present state of environment in India, and recent works for sustainable
development in India. The idea of present study differs from this book.

Introduction to Environmental Law111 by , has given the exhaustive

commentary on the subject of environmental law. He throws light on the journey from
the Stockholm to Rio Summit which led to the recognition that all human beings are
entitled to a healthy and productive life in harmony with nature. In this book the author
has dealt with topics such as: bio-geographical aspects of our environment; socio-
economic dimensions of environment; problems affecting the environment and factors
responsible for environmental degradation; policies of the government for abatement of
pollution and conservation of resources; constitutional obligation to protect natural
environment; right to live in clean and healthy environment; history of evaluation of
law to handle pollution and other environmental problems in India; remedies for
environmental pollution; law relating to control of pollution; law relating to
conservation of forest and wildlife; role of social movements in environmental
management; international environmental law and environment status report of
Tamilnadu. After carefully reading the whole book, it is very much clear that the book
is an exhaustive commentary on the environmental law, but the area of present research
has not been given due consideration.

111
Wadhwa and Company law Publishers, Agra, Nagpur, New Delhi, Reprint 2007.

40
1.17.2. Articles

Environmental Policy and Corporate Environmental Behavior in India: Social,

Economic and Legal Aspects 112 by A. Sahay, this article emphasized that countries all
over the world find sustainability to be a major concern, and India is no exception. The
Indian Environmental Management System today clearly reflects the global concern.
Global Economic Forces have impacted Environmental Management in India on many
fronts, such as pollution control, preservation and promotion of ecology, Environmental
Legislation, Multilateral Environmental Agreements, social pressures and Legal
Actions. Based on the personal and professional experiences of the author in business,

and traces how corporate entities respond to the challenge. It is important to approach
these interdependent dimensions of Sustainable Development with the balanced view of
domestic as well as global aspects.

International Governance for Sustainable Development: Issues and Challenges113

by Dr. Rajendra Kumar Pandey, in this article author said that the international
conference on environment was held in Rio de Janerio in 1992 to formulate an
international framework too implement the agenda of sustainable development. Author
emphasized that among all the targets, timetables and commitments that were agreed
upon, there were no silver bulleted solutions to aid the fight against poverty and a
continually deteriorating natural environment.

Control of Air Pollution in India114, Javid Talib, the author emphasizes that the air is
a comprehensive legislation which contains important provisions for the control of air
pollution and contravention of provisions may be visited with criminal liability. The
attitude of the courts has also been very positive to enforce the provisions of the Act in
spirit. However, independent functioning of the enforcement agencies without any
political interference and vested pecuniary interests is necessary to ensure effective
112
Progress in Industrial Ecology, An International Journal, Vol. 3, June 2006.
113
See; International Conference on Contribution of International Environmental Law for Sustainable
Development: Global and National Perspectives, February 17-18, 2012, organized by Faculty of Law
University of Delhi in collaboration with Department of Environment, Government of Delhi, Delhi,
p. 94.
114
Nyaya Deep, Vol. VII, Issue-2, April 2003.

41
implementation. The author stresses that knowledgeable and informed citizens like
M.C.Mehta can also play a lead role in curbing the menace of air pollution.

Industrial Ecology in the Strategic Sustainable Development Model: Strategic

applications of Industrial Ecology115, by Jouni Korhoren, this article defines
hierarchical and interdependent levels for a systems approach for Strategic Sustainable
Development (SSD) to move towards the desired outcome, the state of sustainability.
This article evaluates the concept of Industrial Ecology by considering its applications
and use in terms of the Strategic Sustainable Development model. If industrial ecology
is used outside the system model, risk and difficulties are generated. Recommendations
derived from ecological economics and environmental management are made for ways
to proceed with the integration of industrial ecology into the broader SSD concept and
approaches.

The Right to Environmental Protection in India: Many a Sip between the Cup and
the Lip?116 by Lavanya Rajamani, this article concludes that India is one of the first
jurisdictions to have embraced an environmental right and fostered an extensive and
innovative jurisprudence on it. The Supreme Court has held the principles of precaution,
polluter pays and inter-generational equity as well as the public trust doctrine as integral
to the corpus of Indian law. There is, however, many a sip between cup and the lip, and
this article explores some of these sips in detail. It argues that the constitutional
guaranteed environmental rights are poorly defined, and therefore, after little guidance
in making difficult judgments central to an exercise of this right. After an analysis of the
relevant case law, it is found that at least some of the principles intended to guide the
actualization rightly does little more than create a smoke screen, which renders
application and implementation difficult and obfuscates the hard questions. It also
argues that the judicial discretion available to judges in public interest environmental
litigation, in combination with the proliferation of imprecise rights, allows the judiciary
preferences for certain rights and certain modes of argumentation to prevail. It
concludes, however, that notwithstanding these concerns, the Indian Supreme Court
deserves credit for having delivered a vast number of environmentally sensitive
115
Journal of Cleaner Production, Vol. 12, Issues 8-10, Oct-Dec., 2004.
116
Review of European Community and International Environmental Law, December 2007, 274-86.

42
decisions, and for its willingness to embrace innovative and progressive conceptual
tools in the service of environmental protection.

Green belt as a mode of maintaining Ecological Balance 117, by Sangeetha

Mugunthan, this article emphasizes that green belt in India refers to a buffer zone
created beyond which industrial activity may not be carried on. This concept has
developed through long line of cases and today, green belts are available not only for
the purpose of protecting sensitive areas to maintain ecological balance, but are also
found in urban areas so as to act as a sink for the harmful gases released by vehicles and
industries operating in the city of area. In this regard, comprehensive guidelines for
developing green belts have been complied by the Central Pollution Control Board.

1.17.3. Reports

186th Report of Law Commission of India September, 2003 under the

chairmanship of Justice M. Jaganadha Rao, recommended that in view of the
involvement of complex scientific and specialized issues relating to environment,
there is a need to have separate should be established and
constituted by Union Government, manned only by the persons having judicial or
legal experience and assisted by persons having scientific qualification and
experience in the field of environment118.

World Health Organization Report 2013 empathizes on closer collaboration

between researchers and policy makers i.e research needs to be taken outside the
academic institutions and into public health programmes that are close to the supply
of and demand for health119.
120
The 2014
is like an eye opener. It once again becomes clear that even after signing the

117
www.legalserviceindia.com/articles/green.html, accessed on 30-12-2014.
118
accessed on 14-11-2014.
119
http://www.who.int/whr/en, accessed on 14-11-2014
120
UNEP under the WMO (World Meteorological Organization) set up the Inter-Governmental Panel
on Climate Change. IPCC is an inter-governmental organization, formed by United Nations
Environment Programme (UNEP) and World Meteorological Organization (WMO) in 1988. At
present 195 countries are member of IPCC. The main object of the IPCC is to make regular analysis
of scientific, technical and socio-economic impacts of climate change and give recommendations for
upgradations. At present IPCC is headed by Dr. R.K. Pachauri (Indian Scientist).

43
 plethora of agreements for the preservation of environment and sustainable
development, still international community is not capable to achieve the desired
results. IPCC report is a warning bell. This particular report has quoted significant
risks of death, ill-health, and injury in low-lying and coastal areas due to floods and
rise in sea levels.

The Human Development Report 2014: Sustaining Progress: Reducing

Vulnerabilities and Building Resilience, launched in Tokyo, on 24 July 2014 by the
United Nations Environment Programme. The 2014 Report highlights the need for
both promoting people's choices and protecting human development achievements.
It takes the view that vulnerability threatens human development, and unless it is
systematically addressed, by changing policies and social norms, progress will be
neither equitable nor sustainable

State of the World 2014: Governing for Sustainability 121, diverse endeavours by
local, people, women, grass root movements and governments for sustainability at
International level are the subject of the new released Worldwatch Institute in the
State of the World, 2014. The report has mentioned that latest Rio + 20 is another
failure on the part of international community. Moreover, United States hesitation to
pass climate legislation is a question mark on the international endeavours for
sustainability.

1.18. RESEARCH GAP

The review of the literature made by the researcher reflects that there are number of
studies related to environment protection laws but no legal study has been made
regarding the effect of non-implementation of Environment Protection Laws on
Sustainable Development. The present study is an attempt to fill the gap in this area.
The researcher has chosen the area of Ludhiana district, which is an industrial hub of
Punjab and researcher has analyzed environment protection laws and their commitment
to further the principles of sustainable development in India particularly in Ludhiana
City according to the constitutional and international commitments.
121
http://www.balkancsd.net/index.php/bcsdn-news/1994-state-of-the-world-2014-edition-released-the-
worldwatch-institute-, accessed on 10-12-2014.

44
1.19. HYPOTHESIS

Even after the passage of forty two years of the Stockholm Declaration, there is still lack
of implementation of Sustainable Development principles in developed and developing
nations, particularly in India. India is a party to various international endeavours
Stockholm to 6th BRICS Summit, 2014, but still there is no agreement regarding the
sustainable development. Constitutional imperatives, numerous legislations for
environment protection and preservation of Air pollution have been passed by the
legislature after the independence. This has been towards the implementation of
international commitments, made since Brundtland Commission and peaking up with
ASEAN (Bali-Indonesia), 2014 and 6th BRICS Summit, 2014. The implementation of
legislations as well as religious, ethical, self and social regulations is an achievable goal
towards the implementation of the principles of Sustainable Development as agreed at
international level. The environment and Sustainable Development related judicial
approach is salutary, but need strengthening with social audit reports of their actual
implementation from time to time.

Developing cities and major industrial towns like Ludhiana implements the principles of
sustainable development only on papers and there are open violations of environment
protection laws especially air pollution laws and principles of sustainable development.
Such violations have abashed in fulfilling the vows towards the international
commitments. The public private partnership models are required with increased
Corporate Environmental Responsibilities (CER) as a part of Corporate Social
Responsibility (CSR) to be developed in a least hazardous manner that there is a self-
induced mechanism from availability, utilization of raw materials to production, waste
management, recycling etc.

1.20. RESEARCH QUESTIONS

In a research, each investigator has to start with certain questions around which his/her
study revolves and in this research, the main research questions around which the
present study revolves are:

1. Whether religion, ethics and customs can again be resorted to for a balanced
approach towards development?

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2. Whether non-implementation of Environment Protection and Air Pollution
Control statutes are responsible for the non- implementation of sustainable
development principles in India?

3. How the concept of sustainable development has become the part of

international and national environmental jurisprudence?

4. Whether the International Treaties, Conventions, Declarations and Agenda for

near future on Environment Protection and sustainable development are being
properly implemented by India as a member State or not?

5. Are the principles of sustainable development adequately defined in India in

nternational Treaties, Conventions,
Declaration and agenda for near future?

6. Has the judiciary maintained and elaborated the Principles of sustainable

development and objects of Environment Protection laws in India in a vigorous
and rigorous manner and can it do more?

7. Whether the industries in major Industrial towns with reference to Ludhiana in

India: a) Have a self induced mechanism? b) Implementing Environmental
Protection laws, specially relating to Air Pollution Laws?

8. If there is non obedience, is it causing India to lag behind from its commitments
towards the international community in sustainable development and lowering
the investment potential of developed countries, under a constant pressure to
implement revised energy consumption and lower pollution norms?

1.21. DATA BASE AND RESEARCH METHODOLOGY

For the accomplishment of its study, the researcher has adopted the doctrinal as well as
analytical approach. The study has been based on the analysis of both primary and
secondary sources. For the doctrinal part of the study, data has been collected through
the following sources:

i. Primary Sources: Primary data includes, Constitution of India, Environment

protection laws in India and International Treaties on Environment Protection and
Principles of Sustainable Development, Statutes passed by legislatures, Rules,

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 Regulations passed by executive bodies and judicial decisions given by the Apex
Court of India and High Courts of States. Moreover, judicial decisions of others
nations have also been taken into consideration.

ii. Secondary Sources: While the secondary sources include books, articles,
journals, reports, conferences, Internet resources, public records and statistics,
historical documents, case studies, and other sources of published and
unpublished information has also been employed.

For the Empirical part of the study, the researcher has been adopted the simple random
sampling approach and data has been collected through following ways:

i. For the collection of primary data, sources like field observations, personal
unstructured interviews, questionnaire (annexure attached) and schedule
technique have been used. For the data collection, various sections of the City has
been consulted like Common People, Industrialists, Transporters, Doctors,
Representatives Industrialists, Architectures, Officers of Municipal Corporation,
Ludhiana, Environmental Engineers and Xen of Pollution Control Board, Zonal-
III Office Ludhiana, District Transport Officer, Scientists of Punjab Agriculture
University etc.

ii. Secondary data consists of data collection from District Pollution Control Board,
Ludhiana, Municipal Corporation, Ludhiana, Industrial Department, case studies.
Moreover, data is collected from the published literature available from Municipal
Corporation, Ludhiana, Central Pollution Control Board, Delhi, Ministry of
Environment and Forests, Government of India, New Delhi, Punjab Pollution
Control Board, Patiala. State Transport Commission, Punjab, Environmental
Statistics of Punjab, 2011, Statistical Abstract of Punjab etc.

1.22. CHAPTERIZATION PLAN

The study of the topic, under discussion, has been divided into following chapters

Chapter One: Introduction and Historical Background

The Chapter one introduces the sustainable development, its origin and evolution. It
also highlights the general scheme of environment protection mechanism at
international levels, national and judicial response, it also explains the Research Design.

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Chapter Two: International Developments towards Environment Protection and
Sustainable Development

The Chapter two deals with international developments in the field of environment
protection and sustainable development. The various developments from Stockholm
Declaration to the United Nations Conference on Environment and Development (Earth
Summit) 1992 and United Nations Framework Convention on Climate Change, 1992 to
the United Nations Conference on Sustainable Development (Rio+20), 2012, BRICS
Summit, 2014 and G20 Leaders Summit, Australia have been explained.

Chapter Three: Indian Constitutional Provisions for Sustainable Development

and Environment Protection

The Chapter three is a thorough study of the Constitutional provisions relating to

environment having important bearing on Fundamental Rights and Directives Principles
sustainable
development in contrast, is a part of a vision reflected by our Constitution makers in
various provisions of Indian Constitution. It is infact imbibed in Indian culture by
religion and festivals. The Constitution of India imposes fundamental duties on every
citizen of India to protect and improve the environment. An obligation is also imposed
on State to protect the environment by constitutional provisions. The religious, ethical
and social beliefs are also compared.

Chapter Four: Statutory Provisions in India for Environment Protection and

Sustainable Development

In the Chapter four various statutory provisions related to sustainable development and
environment protection have been critically discussed. The review of the environmental
pollution laws reveals that the Indian legislature has played a praiseworthy role for the
enactment of good laws. Further, the researcher has suggested amendments in the
environmental laws especially in Environment (Protection) Act, 1986, the Water
(Prevention and Control of Pollution) Act, 1974 and the Air (Prevention and Control of
Pollution) Act, 1981 for better mechanism related to environment preservation and
sustainable development.

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Chapter Five: Principles of Environment Protection and Sustainable
Development: Judicial Trends in India

In the Chapter five decisions of various Courts related to sustainable development and
environment protection have been discussed. These decisions have a flow of ideas
which have been adopted by international community and vice-versa.

Chapter Six: Empirical Study of Air Pollution and Sustainable Development of

Ludhiana City

Chapter six based on an empirical study relates to environment protection and

sustainable development in major industrial towns reflected by a sample survey study of
Ludhiana, specially related to air pollution. Information received reveals that ambient
air quality of Ludhiana city is being monitored regularly at four monitoring Stations at,
Vishavkarma Chowk, Rita Sweing Machine, Bharat Nagar Chowk and Verka Milk
Plant on Ferozepur Road. After revealing the collected data, it is very much clear that
air in the city contains large volume of suspended particles. It is found that higher

It has observed that present set up for implementing laws and policies relating to
sustainable development is not effective. The researcher concludes that administration
has done so much paper work for the creation of sustainable society but in reality
implementation of this paper work is very less. Pollution checking centers in the city are
best example of above said fact. There is no check of administration on these pollution
checking centers. Even in the absence of vehicles, anyone can get the pollution
certificate very easily. It encourages the polluters and makes laws ineffective.

Chapter Seven: Conclusions and Suggestions

In the Chapter seven, the researcher has drawn some conclusions and made certain
suggestions as per Indian requirements related to sustainable development and
Environment Protection Laws, which may be helpful towards evolving the future
strategy and to suggest ways to prevent violations of Environment Protection Laws in
major industrial towns so that India may help the growth of Sustainable Development.

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