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SPEECH OF HON'BLE MR. JUSTICE VIJENDER JAIN, CHIEF JUSTICE, PUNJAB AND
HARYANA HIGH COURT, CHANDIGARH IN A SEMINAR “ENVIRONMENT PROTECTION AND
SUSTAINABLE DEVELOPMENT” AT RAYAT COLLEGE OF LAW, RAILMAJRA (ROPAR) ON
NOVEMBER 2, 2007.
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The entire world is facing a serious problem of
environmental degradation due to indiscriminate development.
Industrialization, burning of fossil fuels and massive deforestation
leading to degradation of environment. Today the atmospheric level of
carbon dioxide, the principal source of global warming, is 26% higher than
pre-industrial concentration.
The global warming has led to unprecedented rise
in the sea level. Apart from melting of the polar ice it has led to
Inundation of low-lying coastal regions. Global warming is expected to
profoundly affect species and ecosystem. Melting of polar ice and
glaciers, thermal expansion of seas would cause worldwide flooding and
unprecedented rise in the sea level if gas emissions continue at the
present rate. Enormous amount of gases and chemicals emitted by the
industrial plants and automobiles have led to depletion of ozone layers
which serve as a shield to protect life on the earth from the ultra-violet
rays of the sun.
The dumping of hazardous and toxic wastes, both
solid and liquid, released by the industrial plants is also the result of
environment degradation in our country. The problem of “acid rain” which
is caused mainly by the emissions of sulphur dioxide and nitrogen oxides
from power stations and industrial installations is a graphic example of
it. The ill-effects of acid rain can be found on vegetation, soil, marine
resources, monuments as well as on humans. Air pollutants and acids
generated by the industrial activities are now entering forests at an
unprecedented scale.
The 1972 Stockholm Conference on “Human
Environment” secured its place in the history of our times with the
adoption of the first global action plan for the environment. Yet, as
increasingly grim statistics indicate, over the past decades our global
environment and the living conditions for most of the inhabitants of the
planet continue to deteriorate. This process has meant significant setback
for both rich and poor. The Declaration of the 1972 Stockholm Conference
referred obliquely to man's environment, adding that “both aspects of
man's environment, the natural and the man-made are essential for his
well-being and enjoyment of basic human rights.”
While economic development should not be allowed
to take place at the cost of ecology or by causing widespread environment
destruction and violation; at the same time the necessity to preserve
ecology and environment should not hamper economic and other developments.
Both development and environment must go hand in hand, in other words,
there should not be development at the cost of environment and vice versa,
but there should be development while taking, due care and ensuring the
protection of environment.
Poverty is a major cause and effect of global
environmental problems and, therefore, it is futile to attempt to deal
with environmental problems without a broader perspective that encompasses
the factors underlying world poverty and international inequality.
The 1992 Rio Declaration on “Environment and
Development” recognises the element of integration of environmental and
developmental aspects.
The World Summit on Sustainable Development was
held in Johannesburg in 2002. The purpose of the same was to evaluate the
obstacles to progress and the results achieved since the 1992 World Summit
at Rio de Janeiro. The same was expected to present “an opportunity to
build on the knowledge gained over the past decade, and provides a new
impetus for commitments of resources and specific action towards global
sustainability.”
The World Conservation Union and the World Wide
Fund for Nature prepared jointly by UNEP described that “sustainable
development, therefore, depends upon accepting a duty to seek harmony with
other people and with nature” according to “Caring for the Earth”.
In Subhas Kumar
v . State of Bihar,
MANU/SC/0106/1991, the Supreme Court has given directions that under
Article 21 of the Constitution, pollution free water and air are the
fundamental rights of the people.
In
A.P.Pollution Control Board II v.
M.V.Nayudu, (2001) 2 SCC
62, this Court observed that the right to have access to drinking water is
fundamental to life and it is the duty of the State under Article 21 to
provide clean drinking water to its citizens.
Similarly,
the Supreme Court in Narmada Bachao Andolan
v. Union of India,
MANU/SC/0640/2000 observed as under:
“Water is the basic need for the survival of
human beings and is part of the right to life and human rights as
enshrined in Article 21 of the Constitution of India........”
The Supreme
Court in Vellore Citizens' Welfare Forum (supra) has recognized the
Precautionary Principle. Again, this principle has been reiterated in the
case of M.C.Mehta v.
Union of India (1997) 2
SCC 353. In the said case, the Precautionary Principle has been explained
in the context of municipal law as under:
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Environmental measures- by the State Government
and the statutory authorities- must anticipate, prevent and attack the
causes of environmental degradation.
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Where there are threats of serious and
irreversible damage, lack of scientific certainty should not be used as
a reason for postponing measures to prevent environment degradation.
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The “onus of proof” is on the actor or the
developer/industrialist to show that his action is environmentally
benign.
Polluter Pays:
The Supreme
Court had an occasion to deal with this main principle of sustainable
development in the case of Indian Council for Environ-Legal
Action v. Union of
India, MANU/SC/1112/1996.
Carolyn Shelbourn in his article “Historic Pollution- Does the Polluter
Pay?” (published in the Journal of Planning and Environmental Law,
Aug.1974 issue), mentioned that the question of liability of the
respondents to defray the costs of remedial measures can be looked into
from another angle, which has come to be accepted universally as a sound
principle, viz., the “Polluter Pays” principle.
The Supreme Court in the said judgment observed
as under:
“The Polluter Pays principle demands that the
financial costs of preventing or remedying damage caused by pollution
should lie with the undertakings which cause the pollution, or produce
the goods which cause the pollution. Under the principle it is not the
role of Government to meet the costs involved in either prevention of
such damage, or in carrying out remedial action, because the effect of
this would be to shift the financial burden of the pollution incident to
the taxpayer. The “Polluter Pays” principle was promoted by the
Organisation for Economic Cooperation and Development (OECD) during the
1970s when there was great public interest in environmental issue's,.
During this time there were demands on Government and other institutions
to introduce policies and mechanisms for the protection of the
environment and the public from the threats posed by pollution in a
modern industrialised society. Since then there has been considerable
discussion of the nature of the Polluter Pays principle, but the precise
scope of the principle and its implications for those involved in past,
or potentially polluting activities have never been satisfactorily
agreed.
This
principle has also been held to be a sound principle in the case of
Vellore Citizens Welfare Forum
(supra). The Court observed that the Precautionary Principle and the
Polluter Pays Principle have been accepted as part of the law of the
land. The Court in the said judgment, on the basis of the provisions
of Articles 47, 48A and 51A(g) of the Constitution, observed that we
have no hesitation in holding that the Precautionary Principle and
the Polluter Pays Principle are part of the environmental laws of
the country.
The Public Trust Doctrine:
The concept of public trusteeship may be
accepted as a basic principle for the protection of natural
resources of the land and sea. The Public Trust Doctrine (which
found its way in the ancient Roman Empire) primarily rests on the
principle that certain resources like air, sea, water and the
forests have such a great importance to the people as a whole that
it would be wholly unjustified to make them a subject of private
ownership. The said resources being a gift of nature should be made
freely available to everyone irrespective of their status in life.
The doctrine enjoins upon the Government and its instrumentalities
to protect the resources for the enjoyment of the general public.
The Public Trust Doctrine primarily rests
on the principle that certain resources like air, sea, waters and
the forests have such a great importance to the people as a whole
that it would be wholly unjustified to make them a subject of
private ownership. The said resources being a gift of nature, they
should be made freely available to everyone irrespective of the
status in life. The doctrine enjoins upon the Government to protect
the resources for the enjoyment of the general public rather than to
permit their use for private ownership or commercial purposes.
According to Professor Sax the Public Trust Doctrine imposes the
following restrictions on governmental authority.
The
European Court of Justice, emphasised in Portugal v.
F.C.Council the need to
promote sustainable development while taking into account the
environment. (report in 3 C.M.L.R. 331)(1997) (ibid Columbia
Journal of Environmental Law, p.283).
The impact of globalization on
environment and sustainable development needs to be continuously
addressed in Indian context which profoundly remains in the
transition. In spite of the potential of globalization to economic
convergence it paved for an increase in equality resulting in
increased environmental impacts such as climate change, protection
of the ozone layer, biodiversity and desertification. These
international trade arrangements and environmental agreements
contain very few provision for harmonizing trade and environment
trade and development. The increasing tendency of trans national
corporations to establish global standards for environmental
performance enhances the contribution of FDI to sustainable
development.
Indian companies are also squeezing natural
resources at a faster pace for shrimp farming in most valuable brackish
wetlands and lakes. Agri-business consortium has been proposed by the
government, ostensibly to help small and marginal farmers, which is to
give a boost to commercializing Indian agriculture to cater to expanding
consumerist markets. In the new liberalized atmosphere, the environment
departments in all states and at the centre are going to become everyone's
punching bag and will find it harder and harder to enforce their
regulations. Industries have been cleared adjacent to a Marine National
Park and protected areas of wildlife officials. The destructive potential
of the liberalized economy justifiably identified tropical islands,
rainforests, coral reefs and marine waters and genetic store houses.
The tragic result of this is avoidable increase
in human misery and ecological degradation, as seen in the growth of the
gap between North and South. The international community needs to fight
the global apartheid the elimination the global apartheid between rich and
poor.
These are some of the issues which I would like
the academicians and students to ponder over.
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