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Justice S A Bobde on The Limits For The Judiciary Regarding The Protection Of The Environment

J20- The Judicial Conference of the Highest Courts of the G20 was a first of its kind conference for the Supreme Courts of the G20. It was held on the occasion of Argentina’s Presidency 2018 of the Group and took place in Beunos Aires, on 8th, 9th and 10th October 2018. The theme of the conference was “Building Consensus for fair and sustainable development” and sought to analyse, from a judicial point of view, the topics of development, fairness and sustainability which are at the forefront of the G20 agenda. The highest Courts of the G20 members and the highest courts of Spain, Chile and the Netherlands participated in the J20 meeting. Also, the highest courts of the countries that currently preside over the Caribbean Community (Jamaica), ASEAN (Singapore), the African Union (Rwanda) and NEPAD (Senegal). In addition, the international tribunals of the associated International Organizations of the G20, including the United Nations (International Court of Justice), the African Union (African Court of Human and Peoples’ Rights) and the Caribbean Community (Caribbean Court of Justice). There were 5 panels and all participating judges gave a short presentation on topics of their choice.

 

Hon’ble Justice S A Bobde gave a presentation on the topic “Towards Sustainable Development” in the panel ” Sustainable Development”. Full text of the speech is available below:

It is a delight to be here at the judicial conference of the Supreme Courts of the G20. I must first take the opportunity of congratulating the Supreme Court of Argentina for setting the theme for this conference by framing three questions that are indeed worthy of being asked- What is dialogue without consensus, power without fairness and development without sustainability? These questions give us the instruments to rethink the foundation of our major activities; to evaluate our past actions and to reevaluate our future.

There is no doubt that dialogue without consensus would not have much meaning. Let us look forward to this dialogue in the spirit of the Rig Veda- आनोभद्राःक्रतवोयन्तुविश्वतः that is, “Let noble thoughts come to us from all universe.”

There is only one Earth and as Mahatma Gandhi said, “The earth, the air, the land and the water are not an inheritance from our forefathers, but on loan from our children. So we have to handover to them at least as it was handed over to us.”

On the question of power without fairness, no one could oppose the need for fairness. For it is power exercised with fairness that appeals as much to the oppressor, as to the oppressed. The obvious difficulty in this is: in whose opinion should the exercise of power be fair?

It is irrefutable that environmental nightmares are our own creation. We humans have caused extensive damage and harm to the environment and started devouring resources meant for all sentient beings. We do not know how to maintain balance like nature does- subtly and inexorably. In the African savannah, when giraffes were overgrazing on a certain tree (umbrella thorn acacias), the trees secreted a toxic substance into the leaves to protect themselves.[1]

Since it is development which often disturbs the balance in nature, and considering that the fuel for development is economic trade, it is necessary to effect a normative change in the fundamentals of our development agendas.

One direction could be a fresh look at GDP which is a significant cause of concern as it depreciates all other aspects and fails to factor in the environment. Moreover, it has a frightening implication.  For instance, if the Amazon rainforests were to be cut down and dug up in name of development, the GDP would reflect the trillions of dollars gained from Natural Capital like trees and rivers, but would not have factored in the loss due to destruction of ecology. Pollutants, loss of green cover and their impact are determinants to calculate loss in the natural capital.  In the process of development, if loss of Natural Capital were to be accounted for, many activities might prove to be loss-ventures.

Someone said, When the last tree is cut, and the last fish killed, the last river is poisoned, then you will see that you can’t eat money. (John May)

After all, one must follow the pattern created by nature. The bee, for example, takes nectar from flowers for its sustenance. But while doing so, the bee does not damage the flower for its own needs. In a nutshell, this summarizes what sustainable development really means.

It would be interesting to follow the example of one of the smallest countries, Bhutan, which has adopted the philosophy of Gross National Happiness by which they have accorded precedence to happiness over Gross Domestic Product, implying that sustainable development takes precedence over mere economic development.

Coming to the Judicial control over sustainable development in India- I think the most significant step taken was the decision to include in the Fundamental Right to Life and Liberty, the principles of Sustainable Development, Precautionary[2] and Polluter Pays principles[3], principle of Intergenerational Equity[4] and the doctrine of Public Trust[5]. Every citizen can thus say that his/her life and liberty, is threatened when development contrary to these principles, is undertaken.

The other legal device adopted by a High Court might appear startling to some but is of great efficacy. It has recognized the legal personality of a river and has held an action by it maintainable through a next friend, to obtain relief. This is line with the legal personality extended to deities and minors who need natural guardians.

While the Court has been extending its reach over environmental issues, I think we need to take stock of the limits. The most fundamental limit flows from a complete lack of control over the development or introduction of a new technology that might eventually prove harmful. Even when it finds a particular use harmful, it might not have control over its usage in another manner or for another purpose which may be equally harmful. However, there is no way of knowing that. A very senior forest officer in India, once told me that the worst degradation to the environment and forests in particular, was because of the introduction of the internal combustion engine and the way it was adapted to cut down trees, forests and hillsides. But there is no gain saying that the production or adaptation of internal combustion engines should have been prohibited.

Perhaps, the only possible way of preventing a new technology or process from irreversibly damaging the environment is the employment of compulsory checks before it is introduced. This could be best done by the already existing legal mechanisms involving use of scientific assessment methods, particularly- Life Cycle Assessment (which effectively evaluates the environmental impact of a product, service or activity, from its ‘cradle to grave.’)

We could have a commission or a tribunal comprising of environmental experts from the member-states which manufacture or trade in a particular commodity. The permission could then be granted unconditionally or on certain terms. We must, undoubtedly be conscious of the fact that the advancement of technology cannot and could not be inhibited. But that does not mean it should not be assessed for harm before and while it is being used. In fact, what was witnessed at tragedies like Chernobyl, Exxon Valdez Oil Spill, Bhopal Gas Tragedy etc, suggest that some environmental disasters can even be classified ‘ecocides’ -i.e. the killing of environment and should be incorporated in international and municipal laws.

All this said and done, one thing that would still be necessary is the indomitable drive which we saw in India when a group of poor villagers clung to their arboreal brothers to save them from being cut down by loggers. The World remembers this as the ‘Chipko Movement’ which literally means hang on or stick to it with your life.

End notes:

[1] Peter Wohlleben, Live Mint, Excerpt: the Hidden Life of Trees, Published on 09.10.2016, available at  https://www.livemint.com/Leisure/sgaNpmEOrXcWREduYSXwsI/Excerpt-The-Hidden-Life-Of-Trees.html (Last Seen on 4.10.2018)

[2]In M.C Mehta v. Union of India (1997) 2 SCC 411, the Court employed the Precautionary Principle to protect the environment against discharge of untreated effluents by leather tanneries, even where there was no evidence of harm or risk from a particular activity. Ordering relocation of the tanneries, Court observed that “even though the leather industry is of vital importance to the country as it generates foreign exchange and provides employment avenues, it has no right to destroy the ecology, degrade the environment and pose as a health hazard”.

[3] In the case of Indian Council for Enviro-Legal Action v. Union of India( 1996) 3 SCC 212,  where chemical factories had not installed Effluent Discharge Equipment and were releasing toxic effluents that polluted aquifers and sub-soil. The factories attempted to conceal the sludge, thereby endangering lives. The Court observed that “the question of liability of the Respondents to defray the costs of remedial measures can also be looked into from another angle, which has now come to be accepted universally as a sound principle, viz. the ‘Polluter Pays’ principle. According to this principle, the responsibility for repairing the damage is that of the offending industry.” Follwing this, the Supreme Court in Vellore Citizens Welfare Forum Vs Union of India- (1996) 5 SCC 647 held that Polluter’s Pay Principle had been accepted as part of the Environmental Law of the Country.

[4]  In State of Himachal Pradesh v Ganesh Wood Products (1995) 6 SCC 363, the Supreme Court highlighted the principle of Intergenarational Equity. Following which in Himachal Pradesh, when a manufacturing unit proposed to fell an inordinate number of trees, just to obtain the essential material from a small part of the tree. The SC declined permission to set up the units and said “The present generation has no right to impede the safety and wellbeing of the next generation or the generation to come thereafter” On the same principle of Intergenerational Equity, the Supreme Court came down heavily on unauthorized, illegal mining and ordered closure of three operating mines.

[5] In M C Mehta v. Kamalnath and Ors., (1997) 1 SCC 388, the Supreme Court also employed the Public Trust Doctrine and declared the rivers, the forests and all the natural resources meant for public use and enjoyment as being held in public trust. The Court said that, as a trustee, the State is under a legal duty to protect the natural resources which cannot be converted to private ownership. The Court further reinstated the importance of the Public Trust Doctrine in AP Pollution Control Board v Prof. M V Nayudu (1996) 5 SCC 718

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