Principles of Environmental Law in India

In 1972, at the United Nations Convention on Environment and Development in Stockholm, the international community woke up to the fact of unprecedented rate of environmental degradation that has been done at the cost of industrial development. This convention also marked the concretization of key concepts and principles of international environmental law that have been developing over the past few decades, based on the scientific sensitization of the fact of environmental degradation. The concept of sustainable development was formally introduced in the Stockholm Declaration. Post this, the Indian Judiciary spearheaded the environmental protection in India, by incorporating the international environmental law principles into Indian environmental jurisprudence.

Precautionary Principle:

It provides for actions to avert risks of serious or irreversible harm to the environment or human health in the absence of scientific certainty about that harm and allows the authority to take public policy decisions covering environmental protection in the face of uncertainty. It is applicable in instances wherein there is a scientific uncertainty about the effects of an activity or a project on the environment. It forms the basis of many key regulatory concepts like the environment impact assessment (EIA), social impact assessment (SIA), forest clearances, etc. In 1996, the Supreme Court of India in Vellore Citizen Welfare Forum v Union of India (AIR 1996 SC 2715), declared that the principle is part of Indian environmental jurisprudence and involves three conditions: 

(1) State government and statutory authorities must anticipate, prevent and attack the causes of environmental degradation; 

(2) 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 environmental degradation

(3) The ‘onus of proof’ is on the actor or developer or industrialist to show the actions are environmentally benign. 

Also, in Democratic Youth Federation v Union of India v Union of India, the Supreme Court  considered the ill-effects of Endosulfan on human beings, and while applying the precautionary principle imposed an interim ban on the production, sale and use of endosulfan and ordered an undertaking of a detailed scientific study on Endosulfan. 

 Principle of Preventive Action:

This principle makes the states dutybound to guarantee that the activities within their jurisdiction or control do not cause harm to the environment of other state or of areas beyond the limits of national jurisdiction. The preventive principle is always related to the ‘precautionary principle’ as prevention is also an anticipatory principle that seeks to avoid foreseeable risks. The prevention principle is the fundamental notion behind laws regulating the generation, transportation, treatment, storage, and disposal of hazardous waste and laws regulating the use of pesticides. The principle was the foundation of the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal (1989), which sought to minimize the production of hazardous waste and to combat illegal dumping. The courts in India have, recognised this principle, but precautionary principle has been primarily relied upon.  However, these two principle apply only when the project or activity has not commenced its operation or commenced its operations but only a possibility of environmental harm exists, without a proof of actual harm. Polluter-pays Principle applies to the situation wherein environmental harm has already taken place.

Polluter-Pays Principle:

The principle places the responsibility of paying the damages to the persons who should pay it as well as who have the ability to pay it. The primary function of the Principle is that it helps in allocating the costs and repairing the damage, between different stakeholders, for the harm caused by them to the environment. It forms the basis of many key regulatory and legal concepts like the extended producer responsibility, compensatory afforestation etc. In Indian Council for Enviro-Legal Action v Union of India, (2011 (8) SCC 161), the polluter pays principle was applied for the first time in India.  However, it is a principle which is mostly relied upon by the judiciary for holding the polluter responsible for environmental harm, and ensuring compensation is paid for the same. However, it's often criticised as a mode of paying to pollute, by allowing the polluters to pollute the environment and do irreversible damage, without any culpability, except for polluter’s financial liability.

Principle of Sustainable Development:

It is a significant principle that has formed the basis of almost all developmental decision making which involves environmental factor. It is applied by the Judiciary, Executive, Legislature, Corporates and so on. The concept of sustainable development has been defined as the development that meets the needs of the present generation without compromising the ability of the future generation to fulfil its needs. The definition given by Sir Brundtland clearly shows that the aim of sustainable development is on improving the quality of life for human without increasing the use of natural resources beyond the capability of the environmental to supply them indefinitely. The Supreme Court has reiterated its importance in several cases, like Rural Entitlement Kendra vs Union of India, Narmada Bachao Andolan vs Union of India, etc., wherein it highlighted the necessity to strike a balance between development and environment. This principle forms the basis of the 17 Sustainable Development Goals, 2030 which seeks to strike a balance between development and environment priorities.

The UNEP and the Supreme Court of India have progressively held Environmental Rule of Law to be of utmost significance for effectively implementing the principle of sustainable development. Additionally, two key principles that form a part of the principle of sustainable development have been discussed below.

 Principle of Inter & Intra-Generational Equity:

An important connotation of the principle of sustainable development is the aspect of equity. The principle of sustainable development requires satisfaction of all needs of the present generation, which gives rise to the principle of intra-generational equity, whereas, the limitation imposed on present use of resources, depict the principle of intergenerational equity. The dictionary meaning of equity is fairness and justice. It is distinguished from equality, which means providing the same to all. Therefore, this principle requires fairness and justice in utilisation of resources as it will lead to satisfaction of the needs of all, belonging to present as well as future generations. The Supreme Court has held this principles to be falling under the mandate of Right to Life, guaranteed under the Constitution of India, and reiterated in several cases, the requirement of adherence to it. This principle has received enhanced attention from litigants and the courts, because of climate change and its future consequences. 

 Principle of Integration: 

This principle requires the integration of sustainable development objectives into the development process, and thus into the policy definition and implementation of various economic and social sectors. Therefore, it requires that in the interest of environmental protection, due consideration be given to the potential consequences of environmentally fateful decisions. Various jurisdictions, e.g., the United States and the European Union and business organizations e.g., the U.S. Chamber of Commerce. have integrated environmental considerations into their decision-making processes through environmental impact assessment mandates and other provisions.

Therefore, the principles form the bedrock of Indian Environmental Jurisprudence, however, they were inculcated into it, post the establishment of basic environmental legislations like Environmental Protection Act, 1986 etc. However, their basic ideology forms resonance in these laws as well. The National Green Tribunal (NGT) Act, 2006, specifically mandates the NGT to adhere to the principles of precaution, polluter-pays and sustainable development while giving its judgements and orders. Adherence to these are key for not only achieving SDGs but also for combating climate change in a just and equitable manner.

Author-  Shivangi V. (Assistant Consultant ESG and Compliance Assurance- Senior Intern)