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Part II

three

Sustainable Development and
Indian Environmental Jurisprudence

Saptarishi Bandopadhyay *

The notion of sustainable development, first articulated during the early 1970s, has evolved into the dominant paradigm through which states and international institutions understand a plethora of issues at the nexus of economic development and environmental protection. The adoption of this framework signals a profound shift in the way society conceives the natural environment in relation to human activities within it. But sustainable development has also drawn significant controversy pointed towards its lack of specificity, problems with implementation, and its implications for the future of the planet.

The major principles housed under this umbrella term, for instance the precautionary principle and polluter pays principle, are the subject of detailed analysis in other chapters in this volume. My primary goal in this chapter is to offer a critical analysis of how sustainable development has evolved as a legal term of art in India, and the array of meanings associated with it. However, since the bulk of Indian environmental jurisprudence related to sustainability has been drawn from international law, I will begin by offering a brief description of the historical evolution of sustainable development in a variety of intergovernmental fora. I may add, the brief history discussed here is by no means a comprehensive survey of sustainable development at the international level. It is offered to contextualise the trajectory of environmental jurisprudence within India.

Sustainable Development: A Brief History

In his Separate Opinion in the Gabčíkovo–Nagymaros decision, in 1997, Judge Christopher Weeramantry, then vice president of the International Court of Justice (ICJ), surveyed a diversity of beliefs and practices spread across the world to describe sustainability as a historic and globally appreciated ethic.1 But the stakes underlying sustainable development emerged with the Founex Report,2 which was produced in preparation for the Stockholm Conference,3 initially proposed by the Swedish government in 1968. The Founex Conference was meant to serve as a forum to record the struggles of developing countries trying to balance economic development and ecological health. At the centre of the disagreement between northern and southern governments was a difference in how each group conceptualised the ‘environment’. For developed countries calling for a dialogue, environmental protection was centred on the degradation of the planet’s physical environment (for example, air and water pollution). Representatives of the developing world, on the other hand, could not imagine conceptualising such physical degradation without emphasising its relationship to human (developmental) concerns.4 While this difference reflected the unique struggles of each group, it was also informed by the ideological divide that characterised the Cold War era. Faced with the likelihood that the United Nations would fail to gather enough political support to realise a global conversation at Stockholm, the UN under-secretary for environmental affairs, Maurice Strong, proposed an agenda that fused environmental protection and developmental concerns under the umbrella concept, ‘ecodevelopment’,5 which would eventually develop into ‘sustainable development’. While the notion of ecodevelopment was far from universally accepted, the Founex Report expressly incorporated its central tenets, identifying northern and southern concerns as distinct yet on par, and garnered enough support to facilitate a future conversation in Stockholm.6

The 1972 Stockholm Conference

In 1972, when states convened at the United Nations Conference on the Human Environment (Stockholm Conference), international environmental law was still nascent, and participants were keen to retain sovereign control over their natural resources.7 This tension is reflected in Principle 21 of the resulting Stockholm Declaration,8 which established a definitive trend in environmental agreements whereby the first clause of the text pays homage to state sovereignty, while the second develops a major exception with respect to the transboundary impacts of domestic activities.9 In addition, developing countries vociferously defended their right to growth and development,10 to the extent that, at moments, the larger discussions seemed in jeopardy.11 Principle 11 of the resulting Stockholm Declaration accommodates these demands, stating that ‘environmental policies of all States should enhance and not adversely affect the present or future development potential of developing countries’.12 Accordingly, the Conference did not take a position on structural issues perpetuated by poorly conceived land use or resource distribution, and resolutely avoided debating the value of large-scale infrastructure projects (such as dams), which developing nations believed to be crucial to their goals of industrialisation and modernisation.13

The Stockholm Declaration was decisively statist,14 and even two decades later the Rio Declaration on Environment and Development (Rio Declaration), was ‘unable to improve significantly upon, develop, or scale back or otherwise alter the language in adopting Principle 21’.15 (India’s National Conservation Strategy and Policy Statement on Environment and Development reflected the resulting status quo.16)

Nevertheless, the Stockholm Conference was significant for its focus on environmental issues. Pursuing the needs identified by the Founex Report, the Stockholm Declaration while committed to state sovereignty,17 focussed on strategies to integrate intergovernmental actions related to economic and social justice, as well as environmental protection concerns.18 But the Declaration did not explicitly mention sustainable development.

Soon after, in October 1974, a collaboration between the United Nations Council on Trade and Development (UNCTAD) and the United Nations Environment Programme (UNEP) produced an important Symposium on Patterns of Resource Use, Environment and Development Strategies in Cocoyoc, Mexico. Significantly, the conversation in Cocoyoc fulfilled the initial goal of the Founex Conference, which had begun as a forum for highlighting the concerns of developing countries, but concluded with a détente that presented the problems of the developed and developing world as different but equally valuable in conversations about the global environment. The resulting Cocoyoc Declaration,19 on the developing world’s perspective on the issue of environmental protection, broadened the conception of ecodevelopment while also orienting it towards human (developmental) issues. Accordingly, the conversation shifted from focussing on industrialisation and consumption patterns to social justice issues, such as access to food, shelter, medicine and education.20 Over the next two decades, environmental protection issues were often addressed outside the auspices of the UN,21 but the elaboration of ecodevelopment in Cocoyoc dramatically reshaped the next major global conversation.

The 1987 Brundtland Commission Report

In 1980, the International Union for Conservation of Nature and Natural Resources (IUCN), as part of its World Conservation Strategy, inaugurated the term sustainable development.22 The Strategy was aimed at ‘the integration of conservation and development to ensure that modifications to the planet do indeed secure the survival and well-being of all people’.23 Three years later, Gro Harlem Brundtland, the then prime minster of Norway, accepted the chair of the United Nations World Commission on Environment and Development (Brundtland Commission), charged with developing cooperative solutions to the deadlock between conservation and development.24

The Brundtland Commission’s report, Our Common Future, recognised that ‘[e]nvironment and development are not separate challenges; they are inexorably linked’.25 The report recast ecological, development, and energy crises as one and the same, noting that ‘[e]cology and economy are becoming ever more interwoven locally, regionally, nationally, and globally into a seamless net of causes and effects’.26 The report focussed on needs and interpreted sustainable development as the kind of development that ‘meets the needs of the present without compromising the ability of future generations to meet their own needs’.27 Moving beyond the traditional discourse on environmental issues, the Commission acknowledged the need for ‘equitable opportunities for all’, emphasising that ‘[i]t is therefore futile to attempt to deal with environmental problems without a broader perspective that encompasses the factors underlying world poverty and international inequality’.28

The Brundtland Report reflected a fundamental shift in the values underlying environmental governance globally, and its interpretation of sustainable development remains the most widely accepted.29 However, ecological management initiatives globally continue to arise within the context of economic investment agendas.30 Against this background, a narrow but plausible reading of the Commission’s definition of sustainable development could conclude that it is acceptable for humans to continue to regulate the destruction of life-forms and entire ecosystems globally, so long as they do not irreversibly endanger the fulfillment of human needs as they may be determined in the future.31 The Brundtland Report also clarifies that ‘limits’ are not absolute but constructed by the interaction of the ‘present state of technology and social organization on environmental resources’, and ‘the ability of the biosphere to absorb the effects of human activities’.32 Through such concessions, the Report affirmed the goal of achieving economic growth through technological innovation, while leaving ambiguous the relationship between these future technologies and the environment.

The 1992 UN Conference on Environment and Development and Resulting Instruments

In 1992, the UN organised a Conference on Environment and Development (UNCED) in Rio de Janeiro (popularised as the ‘Earth Summit’). By this time, the focus of intergovernmental negotiations had shifted from the ‘Human Environment’ (Stockholm Declaration) to ‘Environment and Development’—reflecting the ecodevelopment conversations at Cocoyoc and beyond. At UNCED, representatives of 172 governments arrived at a consensus on sustainable development as the appropriate paradigm within which to locate their respective economic development efforts; and adopted the five resulting instruments.

The resulting Rio Declaration was formulated as a package deal of 27 principles, of which Principle 3 explicitly incorporated the Brundtland Report’s understanding of sustainable development, while Principle 4 squarely conveyed the new status quo, stating: ‘In order to achieve sustainable development, environmental protection shall constitute an integral part of the development process and cannot be considered in isolation from it.’33

The Rio Declaration has been hailed as a foundational document of contemporary environmental law, and referenced by a number of international dispute resolution tribunals.34 However, the Declaration has also inspired an abundance of mixed emotions—for instance, some scholars argue that while the Stockholm Declaration was explicitly focussed on human needs,35 the Rio Conference was far more ecofriendly, and the resulting Declaration displayed a greater equity between environmental protection and economic development.36 Others understand the Rio Declaration as following up on the Stockholm Declaration with a new, Brundtland Commission–inspired approach—focussing on sustainable development as a form of reconciliation between environmental protection and developmental interests.37 This reconciliation, however, is not necessarily neutral. Specifically, scholars have argued that Principle 1—‘[h]uman beings are at the centre of concerns for sustainable development. They are entitled to a healthy and productive life in harmony with nature’—shows the Rio Declaration to be clearly anthropocentric in its ideals.38 Support for this position is found by a reading of Principle 4 which requires that environmental protection be an ‘integral part of the development process’, and not the other way around.

Similarly, Principle 12 of the Rio Declaration ties responses to the ‘problems of environmental degradation’ to the promotion of ‘a supportive and open international economic system that would lead to economic growth and sustainable development’. The danger in this arrangement is that over time the paradigm of sustainable development may absorb environmental concerns into its calculus of economic growth,39 thereby making environmental protection decisions progressively dependent on the economic obligations of states.40 Commentators have also noted that compared to Stockholm Declaration, the Rio Declaration is less statist and incorporates stronger language, making its principles obligatory.41 Nevertheless, critics argue that the document’s terms allow states tremendous leeway in terms of implementation.42 It merits noting that the Rio Declaration itself is not binding.

Finally, some scholars feel that the Rio Declaration reflects the progressive codification of international norms related to the environment;43 while for others the document represents a merging of legal regimes (environmental and economic) and the creation of a hybrid regime of sustainable development.44 The corresponding critical review describes the document as ‘a text of uneasy compromises, delicately balanced interests, and dimly discernible contradictions, held together by the interpretive vagueness of classic UN-ese’.45 These uneasy compromises are visible across the content of the various principles which must be read together.46 Accordingly, scholars generally acknowledge that the Rio Declaration is more a ‘system of environmental international law’, than ‘simply more international law rules about the environment’.47

The UNCED also produced the binding United Nations Framework Convention on Climate Change (UNFCCC), dedicated to checking the spread of greenhouse gases, which explicitly incorporates sustainable development as one of the guiding principles;48 Agenda 21,49 a non-binding plan to ‘create a global partnership for sustainable development’,50 that inspired the United Nations Commission for Sustainable Development; the binding Convention on Biological Diversity (CBD);51 and the Statement of Principles on Forests.52

The Post-Rio Status Quo

Following the UNCED, many states altered their laws to reflect their commitment to sustainable development.53 At the intergovernmental level, there was a conscious effort to establish sustainable development as the dominant context for integrating environmental protection concerns and economic development interests.54 In 1997, the ICJ acknowledged the ‘need to reconcile economic development with protection of the environment [which] is aptly expressed in the concept of sustainable development’.55 Even earlier, Judge Weeramantry seemed to accept the importance of sustainable development when, in his Dissenting Opinion in the Nuclear Tests case, he noted the growing acceptance of the precautionary principle by quoting, approvingly, its inclusion in the Bergen Ministerial Declaration on Sustainable Development in the Economic Commission for Europe (ECE) region.56 The majority decision in the Gabčíkovo–Nagymaros case (which broadly sketches the logic of sustainable development), read together with Judge Weeramantry’s Separate Opinion (endorsing the sustainable development as an ‘integral part of modern international law’),57 gives the distinct sense that the ICJ endorses sustainable development without attending to specifics. Sustainable development has also been recognised by the Dispute Resolution Body of the World Trade Organisation (WTO-DSB).58

At the outset of the twenty-first century, then, neither states nor commentators were able to agree on the meaning of sustainable development across different disciplines, nor limit the scope of how sustainability may be pursued in practice.59 Sustainable development was variously understood as a ‘group of congruent norms’,60 or as ‘a system’61 which functioned at the nexus of economic development, environmental protection and social concerns, as an attempt to reconcile these interests. It was also apparent that while states valued the aspirations and rhetoric underlying sustainability, they were unlikely to accept sustainable development as a binding principle of customary international law.62

The Millennium Declaration and Beyond

In September 2000, the UN hosted a historic meeting of world leaders in New York. The resulting Millennium Declaration63 and the corresponding Millennium Development Goals (MDGs) were designed to establish a set of target-specific goals that governments would commit to achieving by 2015. The focus of these goals was poverty and the possibility of allowing developing nations access to the funds and expertise of international financial institutions like the World Bank and International Monetary Fund (IMF). Noticeably, the goal of environmental sustainability was by now being directly linked with wider developmental goals, such as poverty alleviation, healthcare, education, social empowerment, and child mortality. (Despite some successes at the end of the first decade, World Bank and IMF stressed that many developing countries were struggling to meet their targets by 2015.)64

In 2002, to mark the passing of a decade since the Earth Summit, the UN hosted the World Summit on Sustainable Development (WSSD) in Johannesburg, South Africa. The conference produced the Johannesburg Declaration and a Plan of Implementation of the World Summit on Sustainable Development.65 Following in the footsteps of the MDGs, this document formally acknowledged the social side of environmental degradation, recognising ‘that poverty eradication, changing consumption and production patterns and protecting and managing the natural resource base for economic and social development are overarching objectives of and essential requirements for sustainable development’.66 Accordingly, they situated economic development, social development, and environmental protection as the ‘interdependent and mutually reinforcing pillars of sustainable development’, and stressed that these pillars would have to be strengthened at the ‘local, national, regional and global levels’.67 But the United States refused to participate at the meeting, significantly weakening the document’s impact.

A decade after WSSD, the UN returned to Brazil to host the Rio+20 Conference on Sustainable Development and renewed its commitment to global sustainability under the aspiration of a global ‘Green Economy’. This term, like sustainable development, has proven controversial for lack of a specific definition, the emergence of parallel terms such as ‘green growth’, ‘low carbon development’, ‘sustainable economy’ and ‘steady-state economy’, as well as little clarity about the kinds of measures and protocols that would count as contributing towards such an economy.68 Nevertheless, in 2015, the UN continued to pursue this trajectory by developing the aspirations of such an economy into a set of 17 sustainable development goals (SDGs) to be implemented by the member states by 2030.69

Critical Notes

While legal agreements struggle to pin down a working definition of sustainable development, they often underplay how this reconciliation proceeds by facilitating moral and political decisions that cannot be settled by scientific data. Urging careful critique, some scholars are troubled by how ‘dangerously successful’ sustainable development has been, because of the ‘uncritical accumulation of meanings, often contradictory and impractical’, that have characterised its globalisation.70 They have also acknowledged that ‘a buzzword such as “sustainability” has a long history of power and exclusion’.71

With the rising popularity of ecogovernance, monikers such as ‘integrated outcome’72 have conveyed the faith in a natural compatibility between environmental protection and economic growth, which may be arrived at through standardised techno-scientific practices.73 The resulting paradigm, often characterised by cultural rationalisation74 and a policy-of-finding-compatibility,75 involves a series of moral and political choices that may be certified as objectively sustainable or not.76 Sustainable development is the label under which this paradigm and its underlying assumptions have globalised.

Sustainable Development in India:
The Incorporation Process

Sustainability formally entered Indian planning policy through the Sixth Five Year Plan (1980–85) which included a chapter on ‘Environment and Development’. The Plan emphasised the need to focus on ecological preservation and the use of sound scientific knowledge with respect to the administration of a diverse set of activities, from land use and agriculture, to fisheries and mining. O. P. Dwivedi has described the onset of this trend as ‘alarmist’,77 but his description offers an accurate sense of the significant shift in the Indian government’s thinking on environmental governance during this time. The Seventh Five Year Plan (1985–90) followed this trend by foregrounding the importance of cooperation between government and civil society in countering environmental degradation, and promoting developmental activities that integrate concerns for ecological harmony. Since then, the Indian government has regularly recognised sustainability as the basis for future developmental goals.78

During this period, the Indian Supreme Court began to develop a reputation for being an activist institution,79 claiming a leading role in environmental guardianship in India.80 The Court’s initial forays into environmental jurisprudence began when it was called on to settle disputes related to the termination of mining leases, signaling the end of a wave of national development projects instituted with scant regard for environmental concerns. Initially, in 1985, the judges reasoned that mining operations could be allowed to a limited extent since they affected both economic and security interests of the government. The accompanying compromise required that the government oversee the operations and produce documentation accounting for the ensuing ecological harm.81

In time, the Court adopted a far stricter position, as, over a series of decisions, it all but halted mining operations across the country.82 A major step in this direction was the Supreme Court’s proclamation that the constitutional mandate for the protection of life and personal liberty, under Article 21 of the Constitution, included the right of citizens to live in a pollution-free environment,83 as well as the right to development.84 Simultaneously, lower courts eagerly adopted the Supreme Court’s tenor and reliance on proportionality analysis. For instance, in Kinkri Devi, the Himachal Pradesh High Court insisted that if the central and state governments failed to take the long-term view and ‘strike a just balance between the tapping of the natural resources ... and the preservation and protection of the ecology’, as the Supreme Court had directed, their actions would amount to a violation of the fundamental rights conferred by Article 14 and 21 of the Constitution.85 In 2000, Justice Bharucha used his minority opinion in Narmada to summarise the underlying shift in values and referred to the Guidelines for Environmental Impact Assessment of River Valley Projects issued by the Government in 1985, which stated:

Concern for environmental pollution is rather a recent phenomenon which has been triggered mainly by the backlash effect of accelerated industrial growth in the developed countries. The two major criteria—the project should maximise economic returns and it should be technically feasible—are no longer considered adequate to decide the desirability or even the viability of the project. It is now widely recognised that the development effort may frequently produce not only sought for benefits, but other—often unanticipated—undesirable consequences as well which may nullify the socio-economic benefits for which the project is designed.86

Over the years, the Supreme Court’s interpretation of sustainable development has been dramatically open-ended.87 For instance, in its decision on the relocation of Asiatic Lions, the Court acknowledged that sustainable development, a narrative that the Supreme Court has often portrayed as reflecting ecocentrism, ‘clearly postulates an anthropocentric bias, least concerned with the rights of other species’.88 The judges proceeded to criticise anthropocentrism as marked by ‘human interest focused thinking that [the] non-human has only instrumental value to humans ... humans take [automatic] precedence and human responsibilities to non-human[s] are based on benefits to humans’.89 And yet, in a 2013 decision involving a dispute over the operationalisation of a nuclear power plant in Kudankulam, the Court held: ‘Sustainable Development and CSR [corporate social responsibility] are inseparable twins ... not merely human-centric, but ecocentric’.90

Sustainable development understood purely in terms of such contradictions is liable to be found meaningless. But, the globalisation of this concept, and its widespread use in Indian environmental governance, warns against such an easy presumption of redundancy. In order to make sense of the judiciary’s interpretations, sustainable development must not simply be understood as a legal principle, but rather as a paradigm within which judges repeatedly reorganise competing interests through moral and political choices rationalised by legal argument. The meaning afforded to sustainable development, therefore, is inextricable from the process of dispute resolution through which political actors, like the judiciary, with unique motivations and interests, present their organisation of competing interests as apolitical and flowing rationally from scientific fact.91

Accordingly, a large part of the analysis that follows, will unfold through a close reading of the style, rhetoric and reasoning found in some of the most important sustainable development–centric decisions of the Supreme Court over the past 20 years. The decisions reviewed here do not amount to an exhaustive chronology, because, while the principle of sustainable development is cited extensively and across a diversity of judicial decisions, most of these judgments closely mime the interpretive developments achieved in a smaller number of cases by the Supreme Court. These latter cases form the core of this study.

At the time of the Supreme Court’s initial decisions on environmental issues, the field of environmental governance was already populated with a variety of statutes and administrative rules. Early judicial decisions, during the 1980s and 1990s, were accompanied by and often responded to a litany of popular protests against the colonial evacuation of forests and the modern, nationalist dream of damming the nation’s rivers.92 In addition, unlike other issues on which the Court has taken the lead, for instance, sexual harassment93 (which everyone can agree needs to be stamped out), it is notoriously difficult to point to an unambiguously correct answer in environmental protection/economic development disputes. Accordingly, where the history of the Supreme Court is replete with instances of activism,94 on matters related to environmental issues, the judges have carefully justified their use of sustainable development by reinventing the Court’s understanding of gaps in the law, and by finding sustainable development within existing Indian laws. The Court achieved this goal by various permutations of three approaches: first, by establishing its ability to access international norms;95 then, in subsequent cases, by ‘isolating’96 various principles from existing statutes (or by showing that these principles have found reflection in the Constitution in some form, occasionally supplemented with not-strictly-legal sources);97 and, finally, by precedential mimicry.

Vellore, the Patriarch

Sustainable development was substantively introduced into Indian environmental jurisprudence in Vellore98, a suit brought against the state of Tamil Nadu in response to reports that tanneries in the state were discharging effluents into the river Palar, a major source of drinking water. In response, the Supreme Court used the frame of sustainable development to conclude that the economic benefits of the leather industry notwithstanding, economic interests could not be allowed to ‘destroy the ecology, degrade the environment and pose as a health-hazard’ to the public at large.99

In Vellore, judges traced sustainable development to the Stockholm Declaration,100 and upon quoting the Brundtland Report, concluded that as a ‘balancing concept between ecology and development’, sustainable development had already been accepted ‘as a part of the customary international law’.101 The Court did not enter into a consideration of its reasons for this finding, but did acknowledge that the ‘salient features’ of sustainable development were yet to be agreed upon by jurists.102 This is an important disclaimer, because back in the mid-1990s, sustainable development was not understood as a binding norm.103 The judges in Vellore, perhaps aware of the tenuous nature of their claims to customary international law, outlined a secondary justification—the Court effectively reasoned that even if principles of sustainable development, polluter pays, and precaution were not yet part of customary international law, when they did eventually achieve such a status, the Court would most likely be able to employ them in its decisions.104 Anticipating this trend, the Supreme Court established these principles as part of its ratio in Vellore, creating a new standard of environmental jurisprudence in India.105

With respect to the content of sustainable development, in Vellore, Justice Kuldip Singh set the ground rules for future analysis by observing, ‘[t]he traditional concept that development and ecology are opposed to each other is no longer acceptable. “Sustainable Development” is the answer’ to the problem between development and ecology.106 Viewed through the sustainable development lens, environmental protection and economic development were, as a matter of policy, no longer perpendicular interests in direct conflict.

Vellore endorsed the Brundtland Commission’s definition of sustainable development as that ‘[d]evelopment that meets the needs of the present without compromising the ability of future generations to meet their own needs’,107 and listed some ‘salient principles’ of sustainable development ‘culled-out’ from the Brundtland Report, ‘and other international documents’.108 The Court also noted that the polluter pays principle and the precautionary principle were ‘essential features’109 of sustainable development, and extended customary-norm status to these principles,110 even though the meaning, scope and value of these principles as international legal standards remained contested.111 Finally, the Court underwrote its analysis by reading constitutional provisions112 and statutes [the Air Act,113 Water Act,114 and Environmental (Protection) Act115] to include the polluter pays principle and the precautionary principle as part of Indian environmental jurisprudence.116 The preamble and timing of these environment protection statutes indeed attest that they were legislated in furtherance of India’s commitments at Stockholm,117 but the Court’s analysis does little to establish the import of specific provisions.118

In Vellore, the Court never hinted that there was a dearth of applicable legislation on the relevant issues. In other words, there was no perceivable gap along the lines encountered by the Court with respect to the lack of sexual harassment laws (in Vishaka), where the Court read international rules into provisions of the Indian Constitution.119 Instead, in Vellore, the gap was understood as the inability of the executive and administrative agencies to apply rules that, in the judges’ mind, already existed. In Ganesh Wood Products, the Supreme Court placed this balancing narrative in the context of the quality of governmental decision-making by requiring that administrative authorities give due importance to existing policies, and stay particularly mindful of ensuring long-term, sustainable use of natural resources.120 This trend has continued through the bulk of environmental disputes with the Supreme Court often justifying its decisions on the grounds that the executive agency has failed to implement the relevant legislations.121

Life-cycle after Vellore

Vellore is the patriarch from which a standardised, sustainable development–centric jurisprudence of the Supreme Court flows, via a tightly knit array of precedents. For instance, in Jayal,122 the Court viewed the construction of a dam as a sign of wholesome development and defended this position by proclaiming that ‘sustainable development principle is a sine qua non for the maintenance of the symbiotic balance between the rights to environment and development’.123 Similarly, in Bombay Dyeing,124 the Court described sustainable development as a fundamental part of Indian law. In Kenchappa,125 on the other hand, the judges reviewed a variety of international instruments, related documents and commentary,126 before turning to their earlier decisions in Vellore127 and Essar,128 to confirm the legitimacy and meaning of sustainable development. Research Foundation 2005,129 Intellectuals Forum130 and Milk Producers131 (each of which follows Kenchappa), are all part of a long series of Supreme Court decisions that plainly accept the meaning and legitimacy of sustainable development as established in Vellore.132

Multivalent Readings of Sustainable Development

Since the late 1990s, the Supreme Court has often harnessed the vagueness inherent in sustainable development to arrive at a variety of conclusions.

At a formal level, in 1995, the Court extended the meaning of sustainable development, in accordance with Principle 3 of the Rio Declaration, to acknowledge the relevance of the notion of intergenerational equity,133 but did not supply specifics as to how it may be applied to the dispute. The Court would return to this concept of equity, in Indian Council for Enviro-legal Action,134 where the judges again stressed the importance of sustainable development, writing:

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 the environment and vice versa, but there should be development while taking due care and ensuring the protection of environment.135

Against this background, the Court acknowledged that since future generations would face the effects of environmental degradation initiated in the present, environmental statutes must be enforced keeping future interests in mind.136 The Court’s reasoning here was in keeping with its earlier decision ordering the closure of tanneries in Kanpur found to be polluting the Ganges, despite the resulting unemployment.137 In its Research Foundation 2007 decision,138 on the other hand, the Court felt that sustainable development demanded that the struggling ship-breaking industry of Alang, Gujarat, be allowed to operate in order to secure the employment of over 700 workmen, and roughly 40,000 others directly or indirectly dependent on this industry139 — even at the risk of exposing the workforce and the wider community to the polychlorinated biphenyls (PCBs) and asbestos present within the ship in question, the Blue Lady.

As a matter of legal interpretation, the Research Foundation 2007 decision has been criticised for employing sustainable development incorrectly and inconsistently, particularly when read against the 2003 ship-breaking decision that prioritised the precautionary principle over economic growth.140 For the purposes of following the development of sustainable development, however, it is also important to note the Court’s legal interpretation was, as in Ganesh Wood Products,141 designed to elaborate on India’s political economy; as the Court clarifies:

India after globalisation is an emergent economy along with Brazil, Russia and China. India has economic growth of above 9%. However, that growth is lopsided. A large section of the population lives below poverty line. India has the largest number of youth in the world. Unemployment is endemic ...

... When we apply the principle of sustainable development, we need to keep in mind the concept of development on one hand and the concepts like generation of revenue, employment and public interest on the other hand. This is where the principle of proportionality comes in ...142

In employing proportionality in Research Foundation 2007, the Supreme Court invoked its earlier 2002 decision in Godavarman, where the judges emphasised:

Where the commercial venture or enterprise would bring in results which are far more useful for the people, difficulty of a small number of people has to be bypassed. The comparative hardships have to be balanced and the convenience and benefit to a larger section of the people has to get primacy over comparatively lesser hardship.143

And finally, when applying the principle of proportionality in Research Foundation 2007, the scales were ultimately tipped by the judges’ faith in technical standards, ‘[a]s stated’, the judges wrote, ‘85% of asbestos is in the form of ACM [asbestos-containing materials] in panels which is reusable. Therefore, the report provides State-of-the-Art mechanism which is the key element of “sustainable development”’.144

In its use of sustainable development, the Supreme Court speaks in multiple registers: legal, political and techno-scientific. Legal analysis substantiated through techno-scientific data is most prominently on display when the Court invokes the precautionary principle. The techno-scientific register is also, often, the hinge around which political and socioeconomic interests are resolved. Judging the validity of one interpretation of the precautionary principle over another is beyond the scope of this chapter. I will focus, instead, on the Supreme Court’s development of the relationship between sustainable development and scientific assessments, paying particular attention to the way in which this relationship articulates the epistemology of ecological threats.

The Court has consistently described the precautionary principle as a significant component of the sustainable development scheme.145 In Taj Trapezium, involving a dispute as to whether foundries, chemical industries, and refineries were damaging the Taj Mahal,146 judges applied the reversed burden of proof (held in Vellore to be a part of the precautionary principle),147 thereby requiring the coke/coal industries to show that their operations were environmentally benign. The Court considered affidavits by the Gas Authority of India Ltd., Oil and Natural Gas Commission and Indian Oil Corporation, and relied heavily on reports by the National Environmental Engineering Research Institute (NEERI), and the recommendations of the Vardharajan Committee, to conclude that it had been proven ‘beyond doubt that the emissions generated by the use of coke/coal by the industries’ were responsible for polluting the ambient air.148 The judges stated that atmospheric pollution near the Taj Mahal must be ‘eliminated at any cost. Not even one percent chance can be taken when—human life apart—the preservation of a prestigious monument like the Taj is involved ...’149 Accordingly, the Court ordered 292 industries (out of the 511 implicated) that were using coke/coal as fuel source to cease operations, and outlined a procedure for them to switch technologies (to gas) or be relocated. Ostensibly, the Court’s decision in favour of environmental protection was tipped by a mixture of techno-scientific data, expert recommendations and, ultimately, precautionary regard for a cultural icon.

In 1999, in its assessment of water pollution in Nayudu, the Supreme Court noted that the precautionary principle has led to the creation of a reversed burden of proof.150 The judges quoted Principle 15 of the Rio Declaration, writing that ‘[i]n other words, the inadequacies of science is [sic] the real basis that has led to the precautionary principle of 1982’,151 and also outlined the importance of technical expertise to environmental disputes, recommending the inclusion of a mixed group of scientists and jurists to administrative and appellate authorities that hear such matters. 152

The following year, in its decision in Narmada Bachao Andolan v. Union of India,153 the Supreme Court was asked to restrain the construction of the Sardar Sarovar dam project on the Narmada river on the grounds that the project would have an irreversible adverse impact on the local ecology, and that the project violated the right to life of the agrarian and indigenous tribes being displaced by the submergence of their lands.

In its judgment, the Court continues to display a near-absolute faith in governmental scientific and administrative committees, finding in the very existence of such authorities proof that sustainable development is being pursued responsibly. The Court also aggregates a multitude of human, political issues related to community displacement—loss of land used for subsistence farming, and the end of entire cultures and lifestyles—to a battle between decontextualised statistical data.154 The sway of judicial rhetoric is so bold that a variety of dissenting reports (by the World Bank’s Morse Commission) and foreign judicial decisions155 fail to make a dent in the sustainable development calculus.

However, perhaps given the long trajectory of the dispute, and the political and economic stakes involved, judges in Narmada were not content to rest on their enduring trust in official experts, administrative committees, and government-sponsored scientific data. Their consideration of scientific evidence was laced with liberal ideological considerations, and the decision in favour of the government was justified by drawing legalistic, and not strictly scientific, distinctions between the contentions of the disputing parties. In their decision, judges referenced Vellore as saying that the precautionary principle and the corresponding shift in the burden of proof may be applicable when the risk of harm can be identified.156 Further, they summed that sustainable development itself only comes into play, ‘when the effect of the project is known’ because ‘[s]ustainable development means what type or extent of development can take place which can be sustained by nature/ecology with or without mitigation’.157 Specifically, the Court felt that the threat must emanate from a polluting industry which it defined narrowly, stating, ‘In the present case we are not concerned with the polluting industry which is being established. What is being constructed is a large dam. The dam is neither a nuclear establishment nor a polluting industry’.158

In other words, for the Court, irreversible adverse environmental impact only included some formal ‘pollution’ (like nuclear waste) and not the generic destruction of ecological habitats (for instance, by submergence), which the Court sums up simply as a ‘change of environment’.159 By understanding the consequences of all dams as neutral or apolitical changes, the judges undermine the value of contrary scientific data, and place their faith in a generalised Nehruvian modernism,160 writing,

India has an experience of over 40 years in the construction of dams. The experience does not show that construction of a large dam is not cost-effective or leads to ecological or environmental degradation. On the contrary there has been ecological upgradation with the construction of large dams. What is the impact on environment with the construction of a dam is well known in India and, therefore, the decision in A.P. Pollution Control Board case will have no application in the present case.161

The Narmada decision is also interesting for its treatment of Environmental Impact Assessments (EIAs), which are universally held as crucial for the pursuit of the broad scheme of sustainable development.162 In Narmada, the petitioner asked the Court to note the decision of the US District Court in Sierra Club et v. Robert F. Froehlke,163 where the Court granted an injunction on dam construction for failure to comply with disclosure requirements under the United States National Environmental Policy Act 1969, despite the fact that a substantial amount of work had already been completed—a situation that closely mimicked the situation of the Sardar Sarovar dam on the Narmada river. The Indian Supreme Court rejected the analogy on two grounds—the first was technical in that, back in 1987, when the Sardar Sarovar project received environmental clearance, there was ‘no obligation to obtain any statutory clearance’, and that clearance ‘was essentially administrative in nature’.164 The broader justification was:

... There are different facets of environment and if in respect of a few of them adequate data was not available it does not mean that the decision taken to grant environmental clearance was in any way vitiated. The clearance required further studies to be undertaken and we are satisfied that this has been and is being done. Care for the environment is an ongoing process and the system in place would ensure that ameliorative steps are taken to counter the adverse effect, if any, on the environment with the construction of the dam.165

Such a description is of particular concern because environmental impact assessments are often about ameliorating environmental damage rather than preventing it, because such assessments are only performed after economists and policymakers have decided what investments to make.166 As one review of EIAs in India puts it, ‘[o]verall, EIA is used presently as a project justification tool rather than as a project planning tool to contribute to achieving sustainable development’.167 This conclusion finds support from the growing criticism of the Ministry of Environment, Forest and Climate Change (MoEFCC) for approving projects with only a cursory review of EIAs that have time and again been found to be grossly inadequate when not blatantly fraudulent.168

The modern-statist progress narrative displayed in the Narmada decision grows particularly strenuous with respect to the rehabilitation and resettlement of indigenous populations, whose role in sustainable development is emphasised by the Rio Declaration:

Indigenous people and their communities, and other local communities, have a vital role in environmental management and development because of their knowledge and traditional practices. States should recognize and duly support their identity, culture and interests and enable their effective participation in the achievement of sustainable development.169

To the majority in the Narmada decision, however, sustainable development with respect to indigenous people must be determined under the terms of the larger project of modernisation involving, first and foremost, the homogenisation (or mainstreaming) of their way of life.170 In this sense, Narmada, one of the Supreme Court’s most powerful decisions involving sustainable development, is not only a window into the bifurcation between environmental protection and economic development, but also between the interests of the liberal administrative state and its internally disenfranchised citizens.

Sustainable Development as Something-familiar

Since Narmada, the Supreme Court and various High Courts have regularly invoked sustainable development to a variety of ends, from setting stipulations on bauxite mining in the Niyamgiri Hills of Odisha,171 iron ore mining in Goa,172 to copper smelting in Tamil Nadu,173 to name but a few. A review of these decisions indicates that the Court’s jurisprudence on sustainable development has reached a plateau of sorts and while judicial orders may greatly alter the balance of interests in a given dispute, the Court’s interpretations do little more to develop or clarify the underlying notion. This is not necessarily a critique of the Supreme Court but rather an acknowledgement of the limitations of sustainable development itself. However, these decisions do signal a clear shift away from the abolitionist attitude of the Supreme Court in the 1980s, when mining operations across the country were strictly regulated.

In Sterlite, for instance, the Court responded to a variety of charges against Sterlite Industries and the Tamil Nadu Pollution Control Board (that the smelting plant was being built within areas earmarked as ecologically sensitive; that the government had too-easily agreed to reduce the width of the statutorily mandated ‘green belt’ surrounding Sterlite’s facilities from 250 metres to 25 metres; and that Sterlite had misrepresented and suppressed materials facts before the Court), by making a cursory reference to sustainable development before settling the matter in favour of Sterlite through a discussion of classical notions of judicial review, precluding the Court from second guessing governmental decisions. On the other hand, when the Court makes more than a casual reference to sustainable development, for instance in the Vedanta Alumina Ltd case and Goa Foundation, a currently popular solution is to allow the disputed activity to proceed, provided a certain portion of financial profits are contributed towards environmental protection. The precise variations in the Court’s reasoning are beyond the scope of this chapter,174 but the visible trend lies in the regular and rhetorical use of the principle of sustainable development and subsidiary notions (of precaution and inter/intragenerational equity), as a matter of course.

In speaking to this normalisation of sustainable development, we cannot ignore the significance of the National Green Tribunal (NGT). Established in 2010, the Tribunal reflects the Supreme Court’s frequent insistence that environmental disputes be heard by specialised, fast-track tribunals comprised of jurists and scientific experts.175 Unsurprisingly, the statute establishing this body explicitly requires that members of the bench apply the principle of sustainable development in their assessment of disputes.176

By some accounts, NGT decisions in recent years have taken the wider ecological and social impact of developmental projects seriously. They have done so by being noticeably attentive to the technical aspects of proposed projects, particularly in relation to EIAs (perhaps owing to the presence of technical experts on the bench).177 In some decisions, the Tribunal has scrutinised EIAs to assert the need for meaningful public participation, and emphasised the project proposer’s onus to dispel apprehensions and objections to development.178 The Tribunal has also been outspoken about the need for regulators to pay greater attention to the plight of people likely to be most directly affected by the project.179 This attitude of inclusiveness shows a welcome awareness of the social and cultural impact of environmental decision-making. However, such gestures should be regarded with caution since they can also be found across the Supreme Court’s extensive invocations of sustainable development.

For the most part, as with High Court decisions across the country, the Tribunal’s use of sustainable development closely mimics the rhetoric of the Supreme Court, usually culminating in a judicial declaration that a given activity is (or is not) sustainable,180 or even ‘within the permissible limits of sustainable development’.181 While it may be still be too early to offer a map of the NGT’s overall record, it is worth noting that the Tribunal frequently relies on the Supreme Court’s treatment of sustainability in Narmada and, like that Court, slips into glorifying the automatic wisdom of the sustainable development calculus—for instance, in a 2015 decision, while delineating the scope of development on the slopes of the Ganges in the state of Uttarakhand, the Tribunal observed that ‘the Principle of Sustainable Development has an inbuilt element of reasonableness or doctrine of balancing’.182 The problem here is that while sustainable development does indeed prioritise balancing as a dispute resolution strategy, the Supreme Court’s record in performing this feat is evidence that the process itself is in no way synonymous with a tendency towards reasonableness. Nor for that matter is reasonableness itself apolitical.

Conclusion

Within treaties and before international dispute resolution tribunals, sustainable development has led a conflicted life—steadily gaining power, but still invoked with caution. The Indian Supreme Court’s rhetoric reveals that it understands this scheme to be quite open-ended, and often wields the resulting power expansively and instrumentally. Vagueness has given courts tremendous leeway, not only in terms of the use of this concept, but also by progressively lowering lawyers’ and citizens’ expectations of the standards that courts are required to satisfy in order to legitimise their proclamations. But vagueness of interpretation is not a sin unto itself—it plays the important role of keeping the field of legal argumentation open. The instrumental use of sustainable development, on the other hand, explains how the Supreme Court can understand sustainable development as ecocentric one moment, and anthropocentric in the next.183 Instrumental power is attractive and often leads to the courts ignoring how the flexible narrative of sustainable development shapes power-relations—not only between litigants, but also between litigants and the court. By understanding sustainable development, after Brundtland, as purely about ‘needs’,184 the judiciary has picked and chosen particular instances when an environmental or infrastructure/developmental agenda is of greatest, or often, ‘national’ importance. Governmental expert committees, ‘official’ techno-scientific knowledge, fragments of mainstream (Hindu) cultural history, the interests of urban citizens, and a modernist vision of the future serve as handmaidens to this approach to sustainability that necessarily negates as much as it affirms.

The Indian Supreme Court and its sustainable development jurisprudence are, of course, creatures of the time and culture they function within; how we understand development185 necessarily refracts what we consider to be ‘sustainable’ development.186 With the best of intentions, the judges in Jayal use Amartya Sen’s ‘Development as Freedom’ as their touchstone. They argue that ‘[t]he right to development cannot be treated as a mere right to economic betterment or cannot be limited 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’. Immediately after, however, the Court concludes, ‘[o]f course, construction of a dam or a mega project is definitely an attempt to achieve the goal of wholesome development’.187 The history of big dams across the world and Professor Sen’s own thoughts188 should give us pause.