Judiciary may be reported as the most sharp-eyed protector of democracy. It is one of the three towers upon which the structure of the constitution is constructed. Undoubtedly, major push towards environment preservation and balanced development in India has started from the Indian judiciary. It will not be wrong to say that environmental variances have created some striking case laws in India. Because, Judiciary courageously and enthusiastically enforcing the law and filled the gap in the field of environment and sustainable development . It facilitated legislators without legislating Indian Judiciary has ever assumed the role of defender of the environment and insurer of the fundamental right of life and sustainable development. It has been played important role for advancing the concept of sustainable development.

It is relevant to quote here that the legislature has recently started talking about sustainable development in some of the enactments. But, mainly the acclaim for making sustainable development as fundamental principle of Indian legal system goes to judiciary. If we look at the number of legislations related to environment in India, we would found that there is no shortage of laws. No doubt; judicial approach concerning environment protection has been discussed in various studies . In the present chapter, the researcher has highlighted the activism of Indian Judiciary in interpreting the cases related to environmental pollution particularly with an emphasize to the concept of Sustainable Development.

1. Ganga Pollution by Tanneries Case
   In M.C. Mehta V/s Union of India the Supreme Court held that:to set up primary treatment plant is necessary for every industry. The Court further held that just like where an industry which doesn't pay minimum wages to its workers can't be allowed to exist, an industry which fails to set up a primary treatment plant be not permitted to continue to be in existence for the adverse effect on the public at large which is likely to ensure by the discharging of the trade effluents from the tanneries to the river Ganga would be immense and it will outweigh any inconvenience that may be caused to the management and the labour employed by it on account of its closure.
    
2.  Swap over of Diesel Vehicles to CNG Vehicles
   In M.C. Mehta v. Union of India and Others Court fixed a deadline for city of Delhi regarding switching over of diesel vehicles to CNG vehicles within specified time limit. Further, Court held that: vehicular pollution creates smoke, noise etc. Court further observed that Articles 39(e), 47 and 48-A by themselves and collectively cast a duty on the State to secure the health of the people, improve public health and protect and improve the environment.
   
   It was by reason of the efforts on the part of the enforcement agencies, notwithstanding adequate laws being in place, that this court has been concerned with the state of air pollution in the capital of the country. Lack of concern or effort on the part of various governmental agencies had resulted in spiraling pollution levels. The quality of air was steadily decreasing and no effective steps were being taken by the administration in this behalf.
   
   Moreover, Apex Court directed to Union and all governmental authorities to prepare scheme containing time schedule for supply of CNG to other polluted cities and furnish same to court by 9-5-2002 for its consideration .
    
3. Forestry Preservation and Sustainable Development:
   The Supreme Court in the context of deforestation has given many decisions like Ambika Quarry Works v. State of Gujarat, in that case court trying to strike a balance between the need of exploitation of the mineral resources lying hidden in the forest and the preservation of the ecological balance and to arrest the growing environmental deterioration . It was observed that the rejection of prayer for the renewal of lease was in conformity of the purposes of the Act of preventing deforestation and ecological imbalances resulting from deforestation. In that case the concept of sustainable development was given effect to.
   
   In  State of Himachal Pradesh v. Ganesh Wood Products  the Apex Court held that  the obligation of the sustainable development requires that a proper assessment should be made of the forest wealth and the establishments of the industries based on forest produce should not only be restricted accordingly but their working should also be monitored closely to ensure that the required balance is not disturbed. So far as forest based industries are concerned, there is no absolute and unrestricted right to establish industries. There shall have to be both development and proper environment and ecological balance has to be sound
    
4. Wildlife is Heritage and a Important Component of Sustainable Development
   In G.R. Simon and Others etc. v. Union of India Others, the Delhi High Court that: wild life forms part of our cultural heritage in the same manner as other archeological monuments such as painting, literature and each and every animal plays a role in maintaining ecological balance and therefore, the contention (of the petitioner) that certain animals are detrimental to human life is misconceived.
   
   Taking the case of even jackals, which are referred to by the petitioners as animals of no utility, these are natural scavengers who feed on offal and dead animals, thereby keeping the environment clean. Snakes which have been described by some petitioners as harmful and dangerous to human life feed on rats. Snakes are the natural killers of the rats which cause loss of nearly 33 million tones of stored cereals, apart from dreaded diseases such as plague. The above would show that even the most maligned animals which appear apparently to be of no utility, have a role to play in retaining ecological balance.
   
   Court further stated that,  Wildlife is an asset and heritage to be preserved for future generations , by giving judicial recognition to the principle of intergenerational equity as referred in the international context.
    
5. The Supreme Court in the case of T.N. Godavarman Thirumulpad v. Union of India and Others had again shown the faith on the Principles of Sustainable Development. In this case a company made a proposal for setting up an alumina refinery in the area of Lanligarh Tehsil of Kalahandi District. According to CEC, Niyamgiri hills would bevitally affected if mining is allowed. The project would also destroy flora and fauna of the entire region and it would result in soil erosion. On the other hand, picture of object poverty in which the local people (including tribal people) are living in the area concerned.
   
   There is no proper housing. There are no hospitals, there are no schools andpeople are living in poor conditions . After analyzing the both aspects, Supreme Courtadopted the approach of Sustainable development. The court is not against the project, but it could not take risk of placing an important national asset into hands of applicant company. It is only safeguard by which we are able to protect nature and sub serve development.
    
6. Tehri Dam Case
   Similarly, in N.D. Jayal v. Union of India, petition under Article 32 of the constitution was filed connected to the safety and environmental aspects of the Tehri Dam. The court emphasised that the balance between environmental protection and developmental activities could only be maintained by strictly following the principle of sustainable development. This is a development strategy that caters to the needs of the present without negotiating the ability of upcoming generations to satisfy their needs. Strict observance of sustainable development means a path that ensures development while protecting the environment, a path that works for all people and for all generations .
   
   The court further emphasized on  the symbiotic association linking right to environment and right to development  and held that: The adherence to sustainable development is sine qua non for the maintenance of the symbiotic balance between the rights to environment and development. The right to environment is a fundamental right. On the other hand, right to development is also one. Here right to sustainable development cannot be singled out.
   
   Therefore, the concept of sustainable development is to be treated as an integral part of life under Article 21. The weighty concepts like intergenerational equity, public trust doctrine and precautionary principle which have been declared as inseparable ingredients of our environmental jurisprudence could only be nurtured by ensuring sustainable development.
   
   In the year of 2001, the Apex Court in  Goa v. Diksha Holding Pvt. Ltd. affirmed that  nature will not tolerate such degree of its destruction and such development will have its toll definitely, though it may not be felt in present.
    
7.  Doctrine of 'Polluter Pays', Role of precautionary and concept of sustainable development Supreme Court on several occasions in recent times has taken to task the polluters. To what extent the 'polluter pays' principal is a sound one is briefly examined here with reference to some recent decisions.
   
   In the case of F.B. Taraporewala and Others v. Bayer India Ltd. and Others , the Supreme Court of India held that:
    Industrial Growth- Yes: but by exposing a large segment of society to the risk of lives, No. This apprehension is not imaginary. Bhopal disaster brought to the knowledge of all what a tragedy can be caused by chemical industries. In the wake of what happened there more than a decade ago, industrialists engaged in producing chemicals started thinking of taking precautionary and protective measures to see that if worst were to befall, how could their financial liability be taken care of. The Hon'ble Supreme Court of India further observed that the concept of sustainable development does call upon one and all to see to the maintenance of balance between development and its sustenance in future.
   
   Again in judgment dated 28.8.1996, in the case of Vellore Citizens Welfare Forum v. Union of India and Others, Court directed the closure of 162 tanneries, which were polluting the area and had not complied with the directions of the Court to set up the pollution control devices within the time prescribed.
   
   Further in the case of Indian Council for Enviro-Legal Action v. Union of India In this case, the industrial units were located in Bichri Village in Udaipur district of Rajasthan and were producing certain chemicals like oleum and hydrochloric acid etc. They were producing certain chemicals like oleum and hydrochloric acid etc. they were discharging highly toxic effluents resulting in pollution of ground water and making itunfit for drinking by human beings, cattle and for irrigating the land. The affected soil became unfit for cultivation.
    
8. Precautionary Principle and sustainable development
    The Precautionary Principle has initiated in 1992 in the Rio Declaration on Environment and Development and now is a part of important international agreements and documents.  Paragraph 7 of Bergen Ministerial Declaration of May1990, reads.
   
   In order to achieve sustainable development, policies must be based on the precautionary principle. Environmental measures must anticipate, prevent and attack the causes of environmental degradation. Where there are threats of serious or irreversible damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation.
   
   So far as the role of Indian Judiciary in context of precautionary principle is concerned, the High Court of Calcutta in Burn & Company Labourers Co-operative Credit Society Ltd v. Joydeb Datta held that it is a part of the doctrine of sustainable development in environmental jurisprudence. Moreover, the precautionary principle is akin to the principle of polluter pays and it has been accepted as part of law of the land.

Conclusion and Suggestion
Above decisions makes it clear that the risk of harm to the smaller number of people for public interest is admissible. But, it is submitted that Doctrine of Proportionality of Risk must be used with greater degree of alertness, because the life of the some can't be sacrificed for the purpose of large public interest .Several Judgments of Indian judiciary very much clears that the role of Indian judiciary in context of environment protection and sustainable development is marvelous and laudable. Judiciary in India has done a great service by declaring the right to pollution free air, water and clean environment as fundamental right.

It is the efforts of judiciary that the concept of sustainable development has become the important part in constitution of India and environmental jurisprudence in our country along with certain other principles such as polluters pays principle, precautionary principle, intergenerational equity, public trust doctrine, use and conservation of natural resources, environment protection, obligation to assist and cooperate, doctrine of proportionality of risk, doctrine of absolute liability and extended producer responsibility (EPR) .

Number of times, for the protection of environment, judiciary applied the principle of sustainable development while deciding the cases . Moreover, judiciary through the concept of Public Interest Litigation, arousing social awareness about the importance of environment protection and sustainable development and encouraged people to participate in the prevention and control of pollution programmes.

But still there are a number of hindrances in the way of achieving sustainable society, which are given as under:
 Powers of Apex Court are limited. Number of times, Supreme Court has issued directions to the administration regarding the closure of industries and projects which are harmful for the environment and sustainable development, but administration refuses to accept the directions of Apex Court on the name of Policy decision

 Apart from that, there is inadequate sensitivity amongst the professional, technical and even judicial people. Therefore accountability and transparency in judicial institutions is the need of the hour  .

Footnote:

1. Shashi Kant, Right to Water as Human Right, a Study into Public Trust Doctrine; Privatization and human right (Prof. S.K. Bhatnagar), Department of Law, Baba SahebBhimraoAmbedkar University, Lukhnow.
2. VidyaBhaget Negi,  Environment Protection Laws : A study of Kinnaur District, H.P. .Department of Law, Kuruksherta University, Kurukshetra.
3. Ms. Deepti Singh, Precautionary Principle and its Application: An Evolutionary Stud Degree Granted by: National Law School of India University, Bangalore, 2007.
   M.C. Mehta v. Union of India, AIR 1988 SC 1037.
   M.C. Mehta v. Union of India, AIR 1988 SC 1037, Para 19.
4. AIR 2002 SC 1696.
5. AIR 1987 SC 1037.
6. 1995 (3) SCC 363.
7. Madhu Distilleries Pvt. Ltd. V. M.P. Podushan Niwaran Mandal, AIR 1995 MP 57.
8. AIR 1997 Del 301.
9. (2008) 2 SCC 222.
10. Dr. V. Manickavasagam, Environmental Protection: Some Legal Aspects Chartered Secretary-The Journal of Corporate Professionals, Vol. XXVIII No. 1,January 1998,p, 391
11. (2004) 9 SCC 362.
12. (2004) 9 SCC at 382.
13. (2001) 2 SCC 97.
14. (1996) 5 CLJ 60 (SC)
15. (1996) 3 SCC 212
16. (1996) 5 SCC 281
17. AIR 2006 Cal. 74 at 78
18. Vellore Citizens Welfare Forum V. Union of India (1996) 5 SCC 647;M.C. Mehta v. Union of India (2002) 4 SCC 356; A. P. Pollution Control Board v. Prof. M. V. Naydu (1999) 2 SCC 718, AIR 1999 SC 812.
     

Written By: Abhishek Dular