New Challenges to Sustainable Development in India

In developing countries like India, there has been environment degradation due to our exploitation of resources & depletion of traditional resources. In countries like India, we lacked good coordination between the sustainable development and human rights (right to life).

By

Jasper Vikas George*



Introduction

Article 21 of the Constitution of India on the one hand talks of development i.e. sustainable development for the upliftment of Indian economy and on the other hand it advocated the right to live with dignity i.e. right to life. To maintain a good blend between the both requires a considerable effort and research so as to provide both life with dignity as well as development.


In (N.D. Jayal case) the Hon’ble court after analyzing the safety and environmental aspects of Tehri Dam project shows green signal to the project. In Sardar Sarovar Project case it was held that when two or more opinions are possible and the Government takes a policy decision it is then not a function of the court to rte-examine the matter by of appeal. Necessary analogy could also be drawn from BALCO Employees’ Union (Regd.) vs. Union Of India, 2002(2) SCC 333. It was made clear in this decision that the question whether to have an infrastructural project or not and what is the type of project to be undertaken and how it has to be executed, are part of policy making process and the courts are ill equipped to adjudicate on a policy decision so undertaken. However a note of caution was struck that the courts have a duty to see that in the undertaking of a decision, no law is violated and people’s fundamental rights as guaranteed under the constitution are not transgressed upon except to the extent permissible under the constitution. When a law has been enacted in relation to protection of environment and such law is being given effect to and there is no challenge to such law, the duty of the courts would be to see that the government and the other respondents act in accordance with law.


Sustainable Development: New Approach


Further court in N.D. Jayal that in projects like this court will certainly bear in mind that environment concern should be examined not only with reference to the submerged areas but also its surrounding areas. The whole impact of the project is to be examined in such cases. The construction of this dam would result into multifold improvement in the environment, where the canal water will reach. The benefits, which have been reaped by the people all over India with the construction of dams, are too well known. And, therefore the Government cannot be faulted for deciding to construct the high dam on river Tehri with a view to provide water and electricity in the area.


Though in this situation the important question, which arises, was that of the displacement of people residing in surrounding areas of the proposed site. Therefore a proper relief and rehabilitation project should be considered before going ahead with a Tehri Dam Project. The government subject to certain conditions accepted the report given by Hanumantha Rao Committee and the project is being implemented in terms thereof. A high level committee under the Chairmanship of Director General, Geological Survey of India was appointed which concluded that dam design is safe and added that all danger arising out of the seismicity have been taken note of and taken care of in the planning of Tehri dam project.


Constitutional Obligation


The right to development cannot be treated as a mere right to economic betterment or cannot be limited to as a misnomer to simple construction activities. The right to development encompasses much more than economic well being, and includes within its definition the guarantee of fundamental human rights. In the words of Justice Rajendra Babu the ‘development’ is not related only to the growth of GNP. In the classic work- ‘Development As Freedom’ the Nobel Prize winner Amartya Sen pointed out that ‘the issue of development cannot be separated from the conceptual framework of human right’. This idea is also a part of the UN Declaration on the Right to Development. The right to development includes the whole spectrum of civil, cultural, economic, political, and social process, for the improvement of peoples’ well being and realization of their full potential. It is an integral part of human right. Of course, construction of a dam or a mega project is definitely an attempt to achieve the goal of wholesome development. These are the integral part of development.


Problem of Choice


But the question, which comes up, is that what to choose when both the options are in front of Court. But who is going to decide those parameters on the basis of which the decision will be taken. The concept of sustainable development is to be treated an integral part of ‘life’ under Article 21 of the Constitution of India. To ensure sustainable development is one of the goals of Environmental Protection Act, 1986 and this is quite necessary to guarantee ‘right to life’ under Article 21. If the Act is not armed with the powers to ensure sustainable development, it will become a barren shell.


In short, the concept of sustainable development includes in its arena both, the means to achieve the object and purpose of the Act as well as the protection of ‘life’ under Article 21. The object and purpose of The Environmental Protection Act, 1986 is “ to provide for the protection and improvement of environment”. The concerned authorities by exercising its powers under the Act will have to ensure the acquiescence of sustainable development. Therefore, the direction or conditions put forward by the Act need to be strictly complied with. Thus the power under the Act cannot be treated as a power simpliciter, but it is a power coupled with duty. It is the duty of the State to make sure the fulfillment of conditions or direction under The Environmental Protection Act, 1986.


The main controversy in N.D. Jayal case is regarding the pari passu compliance of the conditions in the clearance certificate. The lexical meaning of the Latin word pari passu is- at an equal rate or pace, with simultaneous progress, proportionately etc. the works, which are fixed up as conditions attached to the clearance, will have to be carried out simultaneously with the engineering works. So by the time the engineering works finishes, the conditions should also have been fulfilled.


Right to health is a fundamental right therefore the impact of the Project on Human Health cannot be given a go by. It has to be seriously scrutinized.


Rehabilitation: Towards Developing Healthty Dimension


Rehabilitation is not only about providing just food, clothes or shelter. It is also about extending support to rebuild livelihood by ensuring necessary amenities of life. Rehabilitation of the oustees is a logical corollary of Article 21. The oustees should be in a better position to lead a decent life and earn livelihood in the rehabilitated locations. The benefits of the dam cannot be taken over the oustees’ rights of rehabilitation. They should be rehabilitated as soon as they are uprooted. And none of them should be allowed to wait for rehabilitation. Rehabilitation should take place before six months of submergence. The concerned authorities will have to take proper steps to rehabilitate all those who are entitled for rehabilitation before six months of the impoundment. Without the completion of rehabilitation there shall not be any impoundment.


It is made clear that the condition of pari passu implementation of conditions prior to the commissioning of the project shall be closely monitored under the existing mechanism set up by MoEF (Ministry of Environment and Forest) and the project authorities will ensure that prior to closing of diversion tunnels T1/T2 for impoundment of the reservoir, evacuation, resettlement and rehabilitation are completed in all respects.


Justice Dhrmadhikari in his dissenting opinion in the N.D. Jayal case enclosed that the dimensions and implications of the case on environment and human rights a monitoring mechanism is required to be set up and activated to ensure compliance of the conditions on which clearance was granted to the construction of a dam in Himalayan valley near Tehri. The Government can utilize the natural resources for common good but cannot be allowed to exploit or virtually plunder it is a manner to deprive those presently sustaining their lives on those natural resources and deprive the coming generations who have also a right of living on those resources. On these fundamental issues, there is cleavage between technological experts, environmentalists and human rights activists the court is faced with an issue not easy to decide as to which section of experts and environmentalists is right in their approach.


According to him just because the dam project is very big and it have multifold benefits, can we displaced the persons living nearby. In the march of progress the humblest and the weakest should not be left behind. On the safety aspect of the dam particularly when the location of the dam is in a highly earthquake prone zone in the valleys of Himalayas, all additional safeguards are required to be undertaken on the ‘precautionary principle’ as contained in the Rio Declaration on Environment and Development’ taken in the United Nation conference held in January 1992 to which India is a party.


The petitioners herein firstly urge from the court to issue necessary directions to conduct further safety tests so as to ensure the safety of the dam. Secondly, they allege that the concerned authorities have not correspondingly complied with the conditions attached to the Environmental Clearance dated July 19, 1990 and want from the court to halt the Project till the same is complied with. Lastly, they want from the court to look into the Rehabilitation aspects.


Judicial Response

In Narmada Bachao Andolan vs. Union of India, 2000(10) SCC 664. Identical conditions were imposed such as The detailed surveys’ studies assured will be carried out as per the schedule proposed and details made available to the Department for assessment.


In Tehri Bandh Virodhi Sangarsh Samiti vs. State of U.P.1992 Supp. (1) SCC 44, grant of clearance on July 19, 1990 was called in question before this court in writ petition and this court examined the safety aspects which were brought to the notice of the court and it was held that the clearance given was not as a result of non application of mind by the Government on safety and environmental aspects and it was particularly examined with reference to the fact that site of the project is being within the earthquake prone zone and this court, after specific examination of the record observed that the project was considered by the Environmental Appraisal Committee of MoEF, Committee of Secretaries, High Level Committee comprising experts of scientific and specialized organizations and also buy a renowned expert of international repute and, therefore, the Government considered the question of safety of the project from various details more than once and on being satisfied with the reports of the experts gave clearance to the project.

In A.P.Pollution Control Board vs. Pro. M.V.Nayudu (Retd.) & Ors. 1999 (2) SCC 718 Court viewed that in scientific matters of complex nature resulting in uncertainty, reference has to be made to a specialized technical/expert body and not merely decide the matter on well known principles of administrative law of court not re-examining the matter if all relevant considerations have been taken note of.


In Vellore Citizens Welfare Forum vs. Union Of India, 1996 (5) SCC 647, and in M.C.Mehta vs. Union of India, 2002 (4) SCC 356, it was observed that the balance between environmental protection and development activities could only be maintained by strictly following the principle of ‘sustainable development’. This is a development strategy that caters the needs of the present without negotiating the ability of upcoming generations to satisfy their needs. All environmental related development activities should benefit more people while maintaining the environmental balance. This could be ensured only by the strict adherence of sustainable development without which life of coming generations will be in jeopardy.


The adherence of sustainable development principle is a sine qua non for the maintenance of the symbiotic balance between the rights to environment and development. The concept of ‘sustainable development’ is to be treated an integral part of ‘life’ under Article 21. The weighty concepts like inter-generation equity (State of Himachal Pradesh vs. Ganesh Wood Products, 1995(6) SCC 363), public trust doctrine (M.C.Mehta vs. Kamal Nath, 1997 (1) SCC 388) and precautionary principle (Vellore Citizens), which are inseparable ingredients of our environmental jurisprudence, could only be nurtured by ensuring sustainable development.


The main conditions that the Ministry of Environment fixes at the time of granting clearance to the Tehri dam project is to comply with the conditions attached to the following aspects:


1. Catchment Area Treatment
2. Command Area Development
3. Flora and Fauna
4. Water Quality Maintenance
5. Bhagirathi Basin Management Authority
6. Disaster Management
7. Rehabilitation


The respondents submitted that the environment plans connected with the project are to be implemented pari- passu with the implementation of engineering works and submit that various actions have already been initiated.


For rehabilitation project in B.D.Sharma v. Union Of India (1992 Supp. (3) SCC 93) court fix the time limit of 6 months of submergence. This prior rehabilitation will create a sense of confidence among the oustees and they will be in better position to start their life by acclimatizing themselves with the new environment.


Over the above view Justice Dharmadhikari in a dissenting opinion finally stated that if the completion of studies, formulation of Action Plan and their implementation to be scheduled in such a way that their execution is pari passu with the engineering works is not adhered to, all engineering works of the project should be stopped and this condition will be enforced under the provisions of Environment Protection Act 1986.


Constitutional Democracy


Ours is a constitutional democracy and we are called a ‘welfare state’. ‘Welfare’ does not mean that we have only to strive for fulfillment of political theory ‘Greatest good of greatest number’.


This case again opens the age-old debate over the issue whether development is to be taken over the human right or not. The general wave is in favor of ‘sustainable development’. Now the question is that in such projects, which cost multimillions, can be allowed at the stake of displacement of surrounders. Though in this case court held that while considering such mega projects court must remember that the unnecessary weight age should not be given to the ‘development’.

We are very much agreeing with the view given by this Hon’ble court that whole the circumstances should be properly analyzed, only than the green signal to be given to multi crore projects.


When natural resources are exploited in a big way for big projects by State with all sincerity and good intentions for general common benefit, social conflicts arise as natural adverse consequence. Generally the conflicts arise between marginal farmers, peasants and other landless persons who survive on natural resources and those who are better off, rich or affluent and who desire to undertaken agriculture and industry. When river project projects for dams are undertaken to generate electricity and improve irrigation facilities, conflicts arise between people living up-stream who have to necessarily lose their source of living and habitat and those living down stream who need water and electricity for their homes, industries and agricultural fields. When such social conflicts between different social groups i.e. up-stream population and down-stream population, between rural population and urban population, between poor surviving on natural resources and others needing natural resources for further development arise what should be the duty and priorities of the state and its authorities who have undertaken the projects? At this juncture court had to decide whether the project to be taken care or not. The needy should be protected always. The court should favor such deprived sections of people who are likely to lose their home and source of livelihood.

So the concept of ‘sustainable development’ requires changes as per the need of the time. And it is also necessary to maintain the blend of human right with that of development.


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*Jasper Vikas George, Advocate, Delhi High Court, New Delhi, 69, Antriksha Apartments, H-3, Vikas Puri, New Delhi-110018, Office- G-2/2, Ground Floor, Sector-16, Rohini, New Delhi-110085, (M)9818821498