Development and Environment: The Conflict of Interest
In this article on Development and Environment: The Conflict of Interest, the author seeks to understand the relationship between the right to development and the right to a clean and healthy environment. The article looks at the consequences of over-exploitation of the environment in the name of development. Moreover, it focuses on the Indian judiciary’s approach to these… Read More »
In this article on Development and Environment: The Conflict of Interest, the author seeks to understand the relationship between the right to development and the right to a clean and healthy environment. The article looks at the consequences of over-exploitation of the environment in the name of development. Moreover, it focuses on the Indian judiciary’s approach to these rights. I. Introduction The frequent occurrences of natural calamities as a result of environmental degradation in...
In this article on Development and Environment: The Conflict of Interest, the author seeks to understand the relationship between the right to development and the right to a clean and healthy environment. The article looks at the consequences of over-exploitation of the environment in the name of development. Moreover, it focuses on the Indian judiciary’s approach to these rights.
I. Introduction
The frequent occurrences of natural calamities as a result of environmental degradation in the recent few years have served as a harsh wake-up call for all of mankind. Millions of deaths and destruction of land and property as a result of raging floods, landslides, cyclones have forced us to open the Pandora’s box and acknowledge that in the race for development and modernisation we have butchered our environment to unimaginable levels. As such, it can be clearly stated that these calamities are not natural but completely man-made.
The desire of the nations to get industrialized and secure its position as an economically developed nation is the root of the conflict between development and environmental protection. It is undeniable that development and environment protection are innately connected to each other and that one is naturally the anti-thesis to the other. Its because the development of a nation is depended on exploiting its environment and the resources whereas protecting the environment obviously places a restriction on the rate of development.
II. Environmental Degradation: The Consequence of Over-Exploitation
Climate change has emerged as one of the biggest challenges in today’s world and has raised questions about our responsibility to the world and future generations. The destruction of natural resources such as lakes, rivers by filling them up for commercial and residential purposes have been the norm for many years now. They are exploited to create houses, high scrappers, tourist resorts and business ventures.
Similarly, large scale mining and quarrying of rocks go unabated causing landslides and incurring massive damage to water resources, agriculture, land and biodiversity. Even though we have recognized the need for environment protection long back and have legislation in place in place to protect the environment, practical realities show that we have hugely failed to adequately protect our environment and the results have been devastatingly catastrophic.
While there are international instruments and national legislation in place to ensure cooperation between the nations to protect the environment and the same time achieve development, we must bear in mind that the impact and the level of these environmental laws in different countries vary. If we a take look at the history of environmental pollution and degradation of the whole world, we can clearly see that it was the developed countries like USA, Russia, etc., that were primarily responsible for nature’s destruction and major contributors of environmental pollution.
It was long after they had secured their position as developed nations and world leaders that concerns about environmental protection and the need for regulating development gained momentum. This placed a lot of burden on the developing and least developed countries as they had to face the brunt of environmental exploitation even though they were not the main culprits. This positioned them at an even more unequal footing with the developed nations ensuring that the rate of their development will always be less.
However, countries like India have in their need for economic development brutally over-exploited the environment which became even more glaring with the chilling Kerala floods of 2018 and 2019 when thousands of people lost their lives. It was such an unprecedented occurrence and forced us to come face to face with the severe consequences of our actions.
III. Right to Development vis-à-vis Right to Environment
India represents a puzzling paradox of poverty in the midst of abounding natural resources. On one hand, there is a need for the promotion social progress and improvement of the conditions for human existence through economic growth; on the other hand, tremendous environmental problems such as resource shortages, species extinction, air pollution, soil pollution and water pollution resulting from industrial production directly threaten the survival and sustainable development of mankind.
This conflict between the right to development and the right to environment is very obvious and prominent in developing countries like India. The right to development and the right to the environment are both third-generation rights, closely related to human development and world peace. For developing countries, there is a de facto conflict between the right to development and the right to the environment, which leads to serious consequences.
In India, in addition to various legislations, the judiciary has played a pivotal role in the growth and evolution of both the right to development and the right to the environment both as a human right as well as a fundamental right. The Supreme Court of India has depicted judicial creativity by introducing a new set of rights in the chapter of fundamental rights under the Constitution which is made enforceable in the court of law. Amongst many, the Right to a Clean and Healthy Environment is one such right which has attained the status of fundamental rights through judicial innovation.
In its creative role, the judiciary has also constructed Right to Development as a fundamental right. Right to development places human beings at the centre of development wherein the state is under an obligation to ensure benefits of development to individuals. The interesting fact is that both these conflicting rights i.e., the right to environment and the right to development draw their genesis from Article 21 of the Constitution. Such affirmation of rights necessarily presents a question of compliance by the state. While trying to appropriately balance both these rights, the courts have had to balance between societal interest and individual interest.
IV. Right to Environment
In the case of Subhash Kumar v. State of Bihar [1], the SC had read the Right to Environment as enshrined in Art 48A of the Constitution under Article 21 as a human right. It was held that:
“The right to life enshrined in Art. 21 includes the right to enjoyment of pollution free water and air for the full enjoyment of life. If anything endangers or impairs the quality of life, an affected person or a person genuinely interested in the protection of society would have recourse to Art. 32.”
The same principle was seen in the case of Chameli Singh v. State of U.P [2], in which case the SC held:
“The right to live in any civilized society implies the right to food, water, decent environment, education, medical care and shelter. These are basic human rights known to any civilized society.”
The entire environmental law jurisprudence has evolved under the shroud of Article 21 of the Constitution of India. It is because right to life means more than mere animal existence and every citizen has the right to live with a certain quality of life which is dependent on the right to environment.
In the case of T.N Godavarman Thirumulpad v. Union of India [3], the role of the SC in protecting the right to development was highlighted. It was propounded that natural resources are the assets of the entire nation. It is the obligation of all concerned, including the union government and the state governments to conserve and not to waste the resources. Any threat to ecology can lead to violation of the right of enjoyment of healthy life guaranteed under Article 21, which is required to be protected. The Constitution enjoins upon the Supreme Court a duty to protect the environment.
V. Right to Development
On the flip side of the same coin, the Right to Development has been read by the judiciary as a part of Article 21 of the Constitution of India. The human right to development bases its premise on both the fundamental rights and Directive Principles of State Policy. Fundamental Rights and the Directives, both form two wheels of the chariot of development. In the case of N.D. Jayal and Anr. v. Union of India [4], the second Tehri Dam case, the Supreme Court said:
“The right to development cannot be treated as a mere right to economic betterment or cannot be limited to as a misnomer to simple construction activities.”
Right to development encompasses much more than economic well-being and includes within its definition the guarantee of fundamental human rights. The right to development includes the whole spectrum of civil, cultural, economic, political and social process, for the improvement of peoples’ well-being and realization of their full potential. It is an integral part of human right. Of course, construction of a dam or a mega project is definitely an attempt to achieve the goal of wholesome development. Such works could very well be treated as an integral component of development.
A look at the jurisprudence on cases relating to the right to environment and right to development reveals that there the court has tried to deliver pro-environmental decisions while promoting sustainable development.
One of the first decisions of the SC giving priority to the right to environment vis-a-vis the right to development was in the case of Rural Litigation & Entitlement Kendra v. Union of India [5], wherein the court ordered the shut down of limestone quarries in spite of the money and time invested into it.
The court held that the same was necessary for protecting and safeguarding the right of the people to live in a healthy environment with minimal disturbance of ecological balance and without avoidable hazard to them and to their cattle, homes and agricultural land and undue contamination of air, water and environment.
In similar lines, in M.C. Mehta v. Union of India [6], popularly known as the Kanpur tanneries case, the Supreme Court drawing a balance between the right to development and right to environment said:
“In cases of this nature, this court may issue appropriate directions if it finds that the public nuisance or other wrongful act affecting or likely to affect public is being committed and the statutory authorities which are charged with the duty to prevent it are not taking adequate steps to rectify the grievance. For every breach of right there should be a remedy.”
Whereas the above-mentioned cases depict the apex court giving priority to the right to development, this has been a consistent approach. The same is visible from the decision of the court in the case of Narmada Bachao Andolan v. Union of India [7], where the dispute was regarding the Sardar Sarovar Dam, the Supreme Court while negating the plea of the Petitioners said that “while protecting the rights of the people from being violated in any manner, the utmost care has to be taken that the court does not transgress its jurisdiction.”
In our constitutional framework, there is a fairly clear demarcation of powers of the organs of the government and the court refused to interfere with the policies of the government promoting development.
The same approach is visible in the case of Banwasi Sewa Ashram v. State of Uttar Pradesh [8], wherein the court while acknowledging that forests were valuable national assets, recognized the fact that industrial development was also pertinent. It was observed that:
“For industrial growth and for providing improved living facilities, there is a great demand in this country for electric energy. In fact, for quite some time the entire country in general and specific parts thereof, in particular, have suffered a tremendous setback in industrial activity for want of energy. A scheme to generate electricity, therefore, is equally of national importance and cannot be deferred.”
VI. Conclusion
From the above decisions, it is clear that both these rights are very essential and hence the existence of a constant rift between them is not advisable nor desirable. It was at this juncture that the concept of sustainable development gained momentum which strives to achieve a delicate balance between development and environment protection.
For instance, in the case of Vellore Citizen’s Welfare Forum v. Union of India [9], the court took cognizance of the concept of sustainable development. The traditional concept that development and ecology are opposed to each other is no longer acceptable.
Sustainable development has come to be accepted as a viable concept to eradicate poverty and improve the quality of human life while living within the carrying capacity of the supporting ecosystems. Sustainable development means the type or extent of development that can take place and which can be sustained by nature/ecology with or without mitigation. The required standard now is that the risk of harm to the environment or to human health is to be decided in the public interest, according to reasonable person test.
References
[1] A.I.R. 1991 S.C. 420
[2] (1996) 2 S.C.C. 549.
[3] (2006) 1 SCC 1
[4] (2004) 9 S.C.C. 362
[5] 1989 S.C.C. Supp. (1) 537.
[6] [1987] 4 S.C.C. 463.
[7] A.I.R. 2000 S.C. 3751.
[8] A.I.R. 1987 S.C. 374.
[9] (1996) 5 S.C.C. 647.