Compliance and Role of Judiciary in meeting the challenge of Sustainable Development
By Anand Singh,
3rd year BBA LLB(Hons.), ICFAI Law School ICFAI University, Dehardun
Preamble: Sustainable development means different things to different people, but the most frequently quoted definition is from the report Our Common Future (also known as the Brundtland Report):
"Sustainable development is development that meets the needs of the present without compromising the ability of future generations to meet their own needs."
Sustainable development focuses on improving the quality of life for all of the Earth's citizens without increasing the use of natural resources beyond the capacity of the environment to supply them indefinitely. It requires an understanding that inaction has consequences and that we must find innovative ways to change institutional structures and influence individual behaviour. It is about taking action, changing policy and practice at all levels, from the individual to the international.
Sustainable development is not a new idea. Many cultures over the course of human history have recognized the need for harmony between the environment, society and economy. What is new is an articulation of these ideas in the context of a global industrial and information society.
Progress on developing the concepts of sustainable development has been rapid since the 1980s. In 1992 leaders at the Earth Summit built upon the framework of Brundtland Report to create agreements and conventions on critical issues such as climate change, desertification and deforestation. They also drafted a broad action strategy-Agenda 21-as the workplan for environment and development issues for the coming decades. Throughout the rest of the 1990s, regional and sectoral sustainability plans have been developed. A wide variety of groups-ranging from businesses to municipal governments to international organizations such as the World Bank-have adopted the concept and given it their own particular interpretations. These initiatives have increased our understanding of what sustainable development means within many different contexts. Unfortunately, as the Earth Summit +5 review process demonstrated in 1997, progress on implementing sustainable development plans has been slow.
Compliance with, and enforcement of, international and national environmental law is widely recognized as one of the principal challenges facing nations in the pursuit of sustainable development. During the past two decades, many countries have enacted environmental legislation (from the protection of public health against environmental pollution, to the restoration and protection of the quality of the natural environment) and become parties to a large number of global and regional environmental conventions, agreements and protocols. These instruments are essential foundations of human health and environmental protection. But they are not ends in themselves. A more critical aspect is the enforcement of the instruments, and this is where the role of the judiciary comes in. The judiciary is a crucial partner in promoting compliance with, and enforcement of, international and national environmental law. The role of the judiciary is critical since compliance does not happen automatically once legal instruments are set into force, but instead requires encouragement, institutional adaptation and change in human behaviour.
The International Arena
Rio De Janeiro Conference, Brazil
The report submitted by the commission, popularly known as "Brundtland Report" was further discussed under section 36 of Agenda 21 of UN Conference on environment and Development held in June 1992 at Rio de Janeiro, Brazil. It deals with International Legal Instrument and mechanism and is concerned with assisting states in promoting sustainable development at national and international level through enhancing the effectiveness of such instruments and mechanisms.
The Rio Declaration contains 27 principles of sustainable development. Among them are several that had a strong influence on both national and international level. Some of the important ones being:
(1) Inter Generational Equity:
This is described in Principle 3 of the Rio Declaration and talks about right of every generation to get benefit from the natural resources. It states that:
"The right to development must be fulfilled so as to equitably meet developmental and environmental needs of present and future generations."
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.
(2) The Precautionary Principle
Explained in Principle 15 of the Rio Declaration, this principle states that, In order to protect the environment, the precautionary approach shall be widely applied by states according to their capabilities. Where there are threat 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"
(3) Polluter Pays Principle
The principle, which has been explained in Principle 16 of the Rio Declaration, states that:
"National authorities should 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 public interest and without distorting international trade and investment"
Thus the above principle was made to make the polluter liable not only for the compensation to the victims but also for the cost of restoring of environmental degradation.
(4) The fourth important principle, which has been mentioned in Principle 10 of Rio Declaration, which states that:
"Environmental issues are best handled with participation of all concerned citizens, at the relevant level. At the national level each individual shall have access to information concerning the environment that is held by public authorities, including information on hazardous material and activities.
In their communities and the opportunity to participate in the decision making process, states shall facilitate and encourage public awareness and participation by making information widely available. Effective access to judicial and administrative proceedings, including redress and remedy shall be provided."
Some of the attempts or cases related to sustainable development being:
(i) Bicycles as transportation policy
Geographical area: Japan.
The destruction of Japanese infrastructure during the Second World War forced citizens to employ non-motorized means of transportation owing to the island nations limited geography, high density and lack of petroleum. Japanese adopted bike and bicycle as essential component of transportation as with growing population the bus system became overburdened, slow and expensive.
The bike system had many advantages, bikes require no petroleum and per mile consumption is very low i.e. 32 cal./mile, compared to automobile consumption of 1800 cal./mile. Thus it solves the pollution problem. Other important advantage is low space occupancy as compared to automobile.
Bike being the most efficient system of transport for short travel, the Japanese Ministry of Transportation has developed bike rental system. Japanese travelers purchase a card granting them unlimited biking, for some fixed rental per month. This allows people to ride a bike to the station near their home, surrender it there and take another from station near their workplace. The consequence of this highly non-motorized share mode of transport has lowered the Japanese per capita fuel consumption to 10% of Americans and thus keeping the pollution well under the minimum standards.
(ii) Fertility Control programs.
Geographical area: China
Developing countries often face the problem of low per capita output growth due to high birth rates. For this reason, population control policies often find a place in a developing country’s long-term goals. But in 1970 The People’s Republic of China became the only country to impose quotas on childbearing decisions. The government issued three norms: late marriage, longer spacing between children i.e. at least four years and also the fewer child norms which suggested two children for urban families and three for rural ones. In 1979, the authorities further restricted it to only one child per household.
The reasons given were that more children lowers per capita capital and output and other such reasons with another one being that it is costly to violate national birth planning guidelines, and even fines were levied on them. Fines were taken out of both parents’ income. However it was formed that government enforcement induced only short-term decrease, empirical advances suggest that only shock to individual household preferences have induced long-term fertility cycles in China.
The result suggests that the population control is not sufficient to promote economic development or sustainability without shifts in individual preferences.
(iii) Endangered species
Geographical area: Northern Rocky Mountains.
It is quite evident in the history that the wolves have always been considered as evil symbols and humans have always tried to eliminate their existence from this world.
As a result there is no wonder that they could find a place for themselves in the list of endangered species. But their immense importance in the ecological cycle can not be overlooked.
Defenders of wildlife a private non-profit organization came up with an innovative solution to this problem. It said that it would reduce tensions between stock men’s and conservationist by compensating ranchers for losses they suffered as a result of encounters with wolves. In 1987 defenders raised $100000 from private donations for this purpose, in 9 years since then they had already paid $19000 to 23 ranchers for 40 cattle and 10 sheeps. They were partially or completely compensated by funds raised. They have also taken other initiatives, like in 1990 they paid for an electric fence which a land owner used to protect his animals from night attacks, landowners are awarded monetarily whenever a pair of wolves successfully breed, on their property, award is also given to those giving information about wolf poachers.
Thus though the organization has shifted the financial burden associated with wildlife conservation, environmentalists who benefit from wolves also pay for the damages that the wild animals pose on locals. However this project has been successfully increasing the wolf count and this progress has been achieved with a very small amount of money, compared to the large sum spent on wolf transport and research.
The Indian Perspective:
Judiciary in India, more precisely the Supreme courts and the High courts has played an important role in preserving the doctrine of sustainable development. India being a developing country with vast geographical area and large population, the main of government becomes to look after the present and future needs of its people. The most strategic question in this arena of Sustainable Development is, should industrialization be given a back seat while the country goes on talking about the environment, which is only incidental to industrialization?
From the historical developments it is very evident that the main indicator of development is industrialization. Some very known instances are of the industrialized countries spreading their imperialism over the lesser or the non-industrialized countries, this generally started with the industrialized countries wanting to expand their markets.
But with the changing scenario of globalization the traditional mindset is changing. It is time to realize the message of people’s welfare contained in Articles 38, 41 and 43 of the Indian constitution, to achieve industrialization. The main idea behind these articles is that it makes it the duty of state to bring equality among the citizens of the country and the state should ensure that all the people are able to have at least the basic necessities of life.
However in the rush to implement the above articles the message of environmental protection and ecological preservation embodied in Articles 14, 21, 47, 48A and Schedules 5 and 6 of the constitution, cannot be taken for granted.
Balancing between environment and industrialization becomes too important only when there is too much of industrialization. In India, a developing country there is the need of rapid industrialization, thus in this scenario although there should be industrialization but it should not be in lieu of damage to environment, and the other thing to be kept in mind is that industrialization should not hinder the overall progress, even for the future generations.
The other important concern is that if we stop development or work of a particular place /project due to environmental or other such threats then the responsibility of relocation, settlements of such persons displaced as a result thereof rests with the government or agency engaged in such work.
One of the landmark decisions was in the case of Rural Litigation and Entitlement Kendra, Dehradun vs. State of UP. In this case a PIL (Public interest Litigation) was filed by Avdhesh Kaushal in behalf of RL & E Kendra Dehradun, which strongly advocated against limestone quarrying in the hills of Mussorie and the court ordered for the complete closure of such quarries.
However, after further litigation the court said that both the Government of India and the court should appoint commities to look into the impact of stone quarrying in Mussorie.As a result of the order by the court it was observed that workmen employed in the limestone quarries which have been ordered to be closed down and also those who are indirectly employed would be left out of work. After the report by the committees it was said that all the lime stone quarries which have been directed to be closed down will have to be reclaimed and afforestation and soil-conservation programs will have to be taken up with the help of already available Eco Task Force of the Department of India.The workmen who were thrown out of employment in consequence of the order shall as far as possible, be provided employment in the afforestation and soil conservation programme.
In another case of M.C.Mehta vs. Union of India, the question was whether the brick kilns should be allowed to function within the union territory of Delhi or asked to shift outside. However the court observed that the brick kilns cannot be permitted to operate and function in the Union Territory of Delhi and they may be relocated or shifted to any other industrial estate in the National Capital Region. In the meantime various other ways in which bricks could be produced with low or no pollution were observed and one of the excellent technology was the fly ash technology, where there would be no kiln, and no firing was needed, thus making it very environmental friendly.
In some cases the government can even recommend a pollution causing industry to continue working if it is in the interest of the nation. One such important case is that of M.C.Mehta vs. Union of India. In this case the, in the PIL filed by petitioners it was said that the hot mixing plant near the Indira Gandhi International Airport, Delhi was said to be causing pollution and was asked to be relocated. However, the respondents said that this could not be done, as the mixture required for making the runway should be very hot, one which can not be fulfilled if the plant is shifted far from the airport area.
The court in this case said that though the mixing plant produced lot of pollution and was harmful for the people residing around the airport premises its relocation was against the interest of nation. However it was said that as the plant was crucial for the maintenance of the airport and the airport being an essential requirement for the development of economy and that too it being the airport of the capital of the country.
Compliance and enforcement
"The keys to good governance, as articulated by the United Nations Development Programme, are rule of law, participation, and accountability and transparency." The role of the judicial branch of government is critical in ensuring the implementation of the principles of both the rules of law and accountability. Firstly, the functioning of a society according to the rule of law is based on the judiciary. Secondly, the judiciary ensures the accountability of other institutions of government and individuals.
In the case of environmental governance, the judiciary also has the difficult role of considering not only environmental instruments, but also economic, developmental and political as well as social instruments. The compliance and enforcement of sustainable development instruments also serves in the promotion of synergies or inter-linkages among multiple issues, also known as the inter-linkages approach. This is because compliance and enforcement requires cooperation and coherence in policies across multiple departments and branches of government.
In considering the role of the judiciary in environmental governance, there are two issues that need to be considered. The first is the role the judiciary in the interpretation of environmental law and in law making and the second is the capability of jurists to effectively interpret the increasingly cross-linked issues brought to their attention. For the judiciary, probably the burden of implementation is greater, as they must not only interpret laws that incorporate the Rio Principles of sustainable development, including the polluter pays principle, the precautionary principle, and the principle of continuous mandamus in the corpus of international and national law; inter- and intra-generational equity; importance of traditional values and ideas; interpretation of constitutional rights including the right to life and the right to a healthy environment, etc., but also have to weigh these against economic and political principles.
On environmental law interpretation and law making, although most people would argue that judges are there merely to interpret legislation and not to make laws, several distinguished jurists have pointed out that the judiciary also contributes to de facto "law making" through precedents. On the capability of jurists, several issues need attention, but one possible solution is the enhancement of their awareness and knowledge of global and regional environmental issues viewed from a wider context of sustainable development. In the Johannesburg Principles, the global judiciary expressly recognized this fact and called on UNEP, UNU and other organizations within and outside the United Nations to actively support a major capacity building programme for judges, prosecutors, enforcement officers and representatives of civil society organizations that are engaged in safeguarding the environmental rights of citizens
The way forward
The way forward to promoting the effective use of environmental laws as an instrument for translating sustainable development policies into action will require the balancing of environmental and developmental considerations in judicial decision-making. This calls for an impetus to the incorporation of contemporary progresses in the field of Environmental law for promoting sustainable development, including access to justice, right to information and public participation, fostering judicial dialogue and exchange of experiences in the field of environmental law in various regions with sensitivity to the cultures and traditions of the respective regions. It is also necessary to promote discussion on possible conceptual and procedural advances, which will facilitate the development and application of environmental law jurisprudence by the courts and promote compliance with, and enforcement of, environmental law. This will also help to establish a network among the judiciaries, the legal professions and law faculties at universities to share information and data on environmental law. Starting on regional levels could be a first step and also facilitate a focus on region specific issues.
Underpinning these international and national efforts to develop a new juridical regime more responsive to the needs of our time is the role of the courts of law at both international and national levels, which should be seen as an integral part of this process. Several recent judgements have demonstrated the sensitivity of the courts to promoting the rule of law in the pursuit of sustainable development. Recognizing this fact, UNEP has so far organized and convened four regional and one global symposiums on the judiciary’s role in promoting sustainable development. The UNU has actively participated in two of these meetings.
If we are to promote the further implementation of Agenda 21, we need to understand the realities that we face, the complexities of the problems and the solutions that we propose, and determine the appropriate level where these solutions could be implemented. We believe that this can be achieved if we look at the increasingly important role of the judiciary in realizing the effective compliance with and enforcement of sustainable development instruments.
1.Environmental Law Cases- Lexis Nexis Student Series.
2.World Resource Institute site-www.wri.org
3. Article by Soura Subha Ghosh-www.legalserviceindia.com
4.Articles on Environmental Jurisprudence by eminent jurists.