Inter-generational Equity-the need for development on a sustainable basis

Written by Raunaq Bagade*

Abstract

Sustainable development has become the need of the hour and we are the custodian of the right of future generation to have a healthy Environment. The paper establishes the link between various Conventions and Declaration which have taken place to secure to us as well as to future genration the  environment to flourish. The author takes the central theme of Inter-generational Equity and after explaining it, goes in to look into its implication. Furthr the paper delves into the Jurisprudence developed by Indian court which suits the Indian scenario. The paper concludes with giving the recommendation which can help to secure a Sustainable development model.

Keywords: Conventions, Sustainable Development, Intergenrational Equity, Pollution.

INTRODUCTION:

Sustainable development as a concept emerged in the 1980s in response to a growing realization of the need to balance economic and social progress with concern for the environment and the stewardship of natural resources.[1] It is difficult to encapsulate sustainable development in a short, punchy definition, which is also precise and unambiguous. This is reflected in the fact that there is no internationally agreed definition of what is meant by sustainable development. A number of general statements of broad principle have been made and have been widely accepted, but it has been left to nations, organizations and individuals to come up with more precise definitions. Accordingly, hundreds have been offered, and the meaning of sustainable development has become an area of intense academic debate in itself.[2]

The roots of sustainable development can be found in the 1970s. In 1972 the UN organized the first UN Conference on Human Environment in Stockholm in 1972. At this conference the UN Environment Programme (UNEP) was developed and 26 principles for the preservation and enhancement of the human environment were identified which the member countries of the UN should comply with. In 1972 in the Stockholm declaration it had been stated that:

Man has the fundamental right to freedom, equality and adequate conditions of life, in an environment of a quality that permits a life of dignity and well-being and he bears a solemn responsibility to protect and improve the environment for present and future generation”[3]

After approximately a decade a new milestone was reached. The World Commission on Environment and Development (established in 1983) came with the first official definition of sustainable development in “Our common future”, also known as the Brundtland Report in 1987 after that many events took place led by governments and businesses to stimulate the implementation of sustainable development and bring it to the attention of the public.[4]

It defined ‘Sustainable Development’ as:

Sustainable development is “development that meets the needs of present without compromising the ability of future generations to meet their own need” [5]

INTER-GENERATIONAL EQUITY:

Equity is about fairness:

Equity derives from the concept of social justice. It represents a belief that there are some things which people should have, that there are basic needs that should be fulfilled, that burdens and rewards should not be spread too divergently across the community, and that policy should be directed with impartiality, fairness and justice towards these ends.[6]

Equity means that there should be a minimum level of income and environmental quality below which nobody falls. Within a community it usually also means that everyone should have equal access to community resources and opportunities, and that no individuals or group of people should be asked to carry a greater environmental burden than the rest of the community as a result of government action.

It is generally agreed that equity implies a need for fairness (not necessarily equality) in the distribution of gains and losses, and the entitlement of everyone to an acceptable quality and standard of living.[7]

The Rio Declaration recognised a number of principles of equity. However, foremost of these are the principles of inter- and intra-generational equity. Inter-generational equity is defined as meaning that the present generation should ensure that the health, diversity and productivity of the environment are maintained or enhanced for the benefit of future generations. Intra-generational equity involves consideration of equity within the present generation, such as use of natural resources by one nation state (or sector or classes within a nation state) meaning to take account of the needs of other nation states (or sectors or classes within a nation state). In other words, people within the present generation have equal rights to benefit from the exploitation of resources and from the enjoyment of a clean and healthy environment.

Brown-Weiss has identified three fundamental principles which form the basis of intergenerational equity, and hence are integral to sustainable development. First, the conservation of options principle requires each generation to conserve the diversity of the natural and cultural resource base in order to ensure that options are available to future generations for solving their problems and satisfying their needs. Second, the conservation of quality principle holds that each generation must maintain the quality of the Earth such that it is passed on in no worse condition than in which it was received. Third, the conservation of access principle provides that each generation should give its members equitable rights that access the legacy of past generations and should conserve this access for future generations.[8]

 

The need for Intergenerational equity arose because of following three main reasons:

  1. Pollution disturbing Ecological Balance:

Ecological Balance is must for smooth procedure of recreation of natural resources by nature. But stepping stones towards development are the main reasons behind disturbed ecological balance. While growth of Industrialization, environment protection was considered as hurdle in its path and no measures were taken to minimize the pollution so caused by growing industries. Apart from Industrial activities, human activities are also contributing to various types of pollutions such as Air Pollution, Water Pollution, Noise Pollution, Land Pollution, etc. Natural resources are getting polluted in every possible way due to human activities.[9]

  1. Loss of Biodiversity:

Biodiversity can be referred to as variety of life forms. Various forms of life due to genetically combinations, species and also ecosystem are covered under biodiversity. Bio diversity helps in protection of water resources, nutrient storage and cycling, climate stability, maintenance of ecosystem. But these benefits are not widely known and there was no specific effort taken to prevent bio diversity. This resulted in diminishing of many species of birds, animals and affecting ecological system.[10]

  1. Excessive and Reckless Use of Natural Resources:

We all know that natural resources are very scarce and they can be recreated only by nature which may require over hundreds of years. Present generation is using every possible modern gadget to ease their life. Such gadgets use power which is directly or indirectly generated from natural resources. Present generation is using natural resources in excess and up to exhausting level. This gave alarming signals to whole world and resulted in evolution of concept which emphasize saving of natural resources for future generations who also have equal rights over natural resources available in the world. The intergenerational equity explored in field of environment by introducing the concept of saving resources for future generation which paved path for Sustainable Development. The development that meets the needs of the present without compromising the ability of future generations to meet their own needs is described as Sustainable development, it is a pattern of growth in which resource use aims to meet human needs while preserving the environment so that these needs can be met not only in the present, but also for generations to come. It’s a buzz word in today’s era. All countries have included word ‘sustainable’ in their developmental objectives.[11]

INDIAN POSITION:

Legislative Initiative

It is possible to suggest with conviction that the beginnings of Indian environmental law were sown at the United Nations Conference on the Human Environment held at Stockholm in 1972, where India was a participant, leading to some sort of realization that a framework of laws was necessary to deal with environmental hazards that would result from the stage of development that India was entering in the 1970s.[12] Prior to this phase, Indian environmental law mainly consisted of claims made against tortious actions such as nuisance or negligence. The Water (Prevention and Control of Pollution) Act of 1974 gave the statute book its first real foundation for environmental protection. Other major enactments followed in 1980 (The Forest (Conservation) Act), 1981 (The Air (Prevention and Control of Pollution) Act),[13] and 1986 (The Environment (Protection) Act).

The Constitutional Framework

The Forty-Second Amendment to the Indian Constitution in 1976 introduced principles of environmental protection in an explicit manner into the Constitution through Articles 48A and 51A(g). Article 48A, part of the Directive Principles of State Policy,[14] obligated the State to protect and improve the environment.[15] On the other hand, Article 51A (g) obligated citizens to undertake the same responsibilities.[16] As far as legislative power was concerned, the Amendment also moved the subjects of “forests” and “protection of wild animals and birds” from the State List to the Concurrent List.[17] The Stockholm conference is honoured by references in the Air Act and the Environment Act – a result of effective applications of Article 253 of the Constitution, which gives the Parliament (India’s central legislature) the power to make laws implementing India’s international obligations, as well as any decision made at an international conference, association or other body.[18]

Recent Noteworthy Initiatives

The National Environment Appellate Authority Act (1997) was enacted to enable the Union Government to establish the National Environment Appellate Authority. The Authority is empowered to hear appeals against orders granting environmental clearance in designated areas where industrial activity is restricted under the Environment Act. The National Environment Tribunal Act (1995) extends the principle of no-fault liability beyond the compensation limits prescribed under the Public Liability Insurance Act (1991). The Act deals with, inter alia, compensation related to accidents concerning toxic substances. The Tribunal set up under the Act has exclusive jurisdiction[19] over claims of compensation in these circumstances.

 

JUDICIAL DECISIONS ON INTER-GENERATIONAL EQUITY:

In India, in State of Himachal Pradesh v Ganesh Wood Products,[20] a writ petition was filed seeking issuance of a writ restraining the government of the State of Himachal Pradesh from permitting the establishment of any factory units for the manufacture of Katha in the State. Katha is derived from the Khair tree, which is found in considerable numbers in the State. Only the central portion of the trunk of the Khair tree is used for the manufacture of Katha. Hence, the manufacture of Katha requires the cutting of the Khair trees. The ground for seeking the writ was that the establishment of Katha manufacturing units would lead to indiscriminate felling of Khair trees which would have a deep and adverse effect upon the environment and ecology of the State.[21] The Supreme Court of India (B.P Jeevan Reddy J and M.K. Mukherjee J) in a judgement delivered by B P Jeevan Reddy J upheld the appeal. The Supreme Court stated that:

The considerations of environment and ecology and preservation of forest wealth are absolutely relevant considerations which the Government must keep in mind while devising its policies and programmes”.[22]

The Supreme Court upheld the applicability and significance of the concept of sustainable development. The Court cited from the Our Common Future report,[23] the 1972 Stockholm Conference[24] and E.F Schumacher’s book, Small is beautiful – a study of economics as if people mattered.[25] The Supreme Court then emphasised the significance of the concepts of sustainable development and intergenerational equity. As to the latter, the Supreme Court said:

“Intergenerational equity means the concern for the generations to come. The present generation has no right to impede the safety and well-being of the next generation or the generations to comes thereafter”.[26]

The Supreme Court found the actions of the relevant government body to approve any and every proposal that came before it, on the assumption that so long as there is no commitment on the part of the Government to supply Khair wood to the proposed factories there is no harm, to be “a totally faulty and a myopic approach”. It not only violated relevant and National and State Forest Policies, it was also:

“Contrary to public interest involved in preserving forest wealth, maintenance of environment and ecology and considerations of sustainable growth and inter-generational equity. After all, the present generation has no right to deplete all the existing forests and leave nothing for the next and future generations. Not keeping the above considerations in mind, it is obvious, has vitiated the approvals granted by the sub-committee of IPARA – apart from the fact that it was not empowered to grant any such approval. The obligation of sustainable development requires that a proper assessment should be made of the forest wealth and the establishment of 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”.[27]

In T.N. Godavarman Thirumulpad vs Union of India & Ors[28] the Supreme Court held that Environmental justice could be achieved only if we drift away from the principle of anthropocentric to ecocentric. Many of our principles like sustainable development, polluter-pays principle, inter-generational equity have their roots in anthropocentric principles. Anthropocentrism is always human interest focussed and non-human has only instrumental value to humans. In other words, humans take precedence and human responsibilities to non- human based benefits to humans. Ecocentrism is nature centred where humans are part of nature and non-humans have intrinsic value. In other words, human interest does not take automatic precedence and humans have obligations to non-humans independently of human interests. Ecocentrism is therefore life- centred, nature-centred where nature include both human and non- humans. National Wildlife Action Plan 2002-2012 and centrally sponsored scheme (Integrated Development of Wildlife Habitats) is centred on the principle of ecocentrism.

 

In Goa Foundation v. Union of India & Ors[29] the Supreme Court ordered the State government

  1. i) That until the final report is submitted by the Expert Committee, the State Government will, in the interests of sustainable development and intergenerational equity, permit a maximum annual excavation of 20 million MT from the mining leases in the State of Goa other than from dumps.
  2. ii) The State Government will within six months from today frame a comprehensive scheme with regard to the Goan Iron Ore Permanent Fund in consultation with the CEC for sustainable development and intergenerational equity and submit the same to this Court within six months from the date of judgment.

SUSTAINABLE DEVELOPMENT NEED OF THE HOUR:

We need the speediest, most productive and advantageous wellsprings of transport to encourage our improvement. We need the best machines to produce merchandise at the rate of sound. We oblige the best correspondence offices, the best structures, and the best scaffolds. Development, advancement and benefit – these are the motivational drives in today’s quick paced world and this all is possible only because of the natural energy resources that are available with us.

All the countries require the control of environmental assets. The world is facing the problem of advancing the utilization of the available natural resource currently accessible in a manner to address the needs of the present era without bargaining on the prerequisites of future generations. To add to this, now it is likewise basic that our delicate environment endures the slightest harm conceivable. In more specialized terms, reasonable use of the resources available naturally in the surroundings is needed to overcome the misbalance thus created.

The future of our planet depends on our use of the available resources. This does not mean that we stall all progress to save the resources for our future generation. This calls for efficient use of non-renewable resources. Wastage of such resources must be minimized and alternative sources should be made more feasible for even the common man. By shifting the energy burden from non-renewable to renewable resources, we can stand up to the challenges of the future.

 

To address the issue of sustainable development from its root causes, many conventions were held worldwide and Regulation guidelines were prepared. They can be summarized as follows:

  • WWF (World Wide Foundation) is formed for protecting the world’s wildlife, endangered species, etc. They are conservation leaders for more than 39 years.
  • BASEL Convention on Trans boundary Movements of Hazardous Wastes and their Disposal was held in 1989 made environmentally sound management prerequisite in Trans boundary movement of wastes.
  • Kyoto Protocol was adopted in 1997 by 37 countries. It sets binding targets for 37 countries for reducing greenhouse gas emission. Protocol places a heavier burden on developed nations. Market based mechanism allow developed parties to earn and trade emission credits.
  • TheUnited Nations Conference on Sustainable Development (UNCSD), also known as Rio 2012, Rio+20, or Earth Summit 2012 was the third international conference on sustainable development aimed at reconciling the economic and environmental goals of the global community.[30]
  • Apart from this many conventions on issues such as Preservation of Wetlands, Sea Water, Marine lives, Climate change and carbon trading, Trail Smelter Arbitration were passed which focused on root causes of need of sustainable development such as bio diversity conservation, ecological system’s balance, etc.

Conclusions

It is clear that the law on sustainable development is gaining momentum at local, national, regional, and international levels. While one of the four fundamental elements of sustainable development i.e. intergenerational equity aims for the conservation of biological diversity and ecological integrity, and the internalisation of environmental costs has been much discussed and promulgated in various international and national legal contexts, there is still a long way to go in terms of their implementation.[31]

Intergenerational Equity is required due to undue human interference in natural systems. It can be achieved through development on sustainable basis. An important step towards this path is formation and implementation of proper environmental policy. Environmental Policy has a vital role to play in actively supporting environmental friendly consumptions of natural resources.  It may also be instrumental in making tangible progress towards more sustainable consumption and production patterns. We the members of present generation, hold the earth in trust for future generations and sustainable development will help us achieve the same.

Recommendations

The following recommendations are proposed:

  1. To promote environmental awareness and education among general public with the use of Information Technology and Communication tools.
  2. To Reduce, reuse, recycle resources whenever, where ever possible.
  • To use eco-friendly, energy efficient technologies.
  1. To utilize resources as per the carrying capacity of the system.
  2. Promoting sustainable consumption and production with the aid of NGO’s
  3. To promote research activities in the sphere of sustainable development
  • To enact appropriate and stringent laws promoting inter-generational equity through sustainable development process.

 

* Assistant Professor in Law, Institute of Law, Nirma University.

[1]Tom Edwards Sustainable Development, http://www.parliament.nsw.gov.au/prod/parlment/publicat ions.nsf/0/6460bd8194e62717ca25758d0012e3d1/$FILE/sustainable%20development.pdf.

[2]Id.

[3] Soura Subha Ghosh, Sustainable Development and Indian Judiciary, Legal Service India, http://www.legalserviceindia.com/articles/jud.htm.

[4] Anneke Hoijtink, The Sustainability Attitude of Commercial Banks, 1 http://www.telos.nl /Publicaties/PublicatiesRapporten/downloads_getfilem.aspx?id=180263.

[5] WORLD COMMISSION ON ENVIRONMENT AND DEVELOPMENT (1987) Our Common Future.

[6] Falk, Jim, Hampton, Greg, Hodgkinson, Ann, Parker, Kevin & Rorris, Arthur, Social Equity and the Urban Environment, Commonwealth Environment Protection Agency, AGPS 2 (1993).

[7] Sharon Beder, Costing the Earth: Equity, Sustainable Development and Environmental Economics, 1-2   http://www.uow.edu.au/~sharonb/esd/equity.html.

[8] Edith Brown Weiss, Intergenerational equity: a legal framework for global environmental change, in

Environmental change and international law: New challenges and dimensions, (Edith Brown Weiss ed., 1992).

[9] Madhura Ubale, In the ambit of Developing nexus between Trade Liberalization and Environment Protection, caclubindia (Apr. 18, 2012), http://www.caclubindia.com/articles/intergenerational-equity-need-for-development-on-sustainable-13607.asp#.VJJXHyuUcc9.

[10] Id 3.

[11] See supra note 10.

[12] This is in contrast to laws in countries such as England, which were sometimes a direct result of some mass environmental disaster; for example, the Clean Air Act of 1956 was the outcome of the deadly smog that killed over 4000 people in London in 1952. (The Act has since been replaced by the Clean Air Act of 1993). See Harish Salve, Justice between Generations: Environment and Social Justice, in Supreme But Not Infallible: Essays in Honour of the Supreme Court of India 360-380, (B. N.Kirpal et el. Eds., 2000). Salve adds: “In the fullness of time, political upheavals brought home the realization that freedom can only survive if it honours basic human rights and is founded on principles of natural justice.”

[13] The Preamble to the Act for a specific reference to the Stockholm conference.

[14] Shyam Divan & Armin Rosencranz, ENVIRONMENTAL LAW AND POLICY IN INDIA: CASES, MATERIALS AND STATUTES 45-46 (2d ed., 2001). (For a detailed discussion on the Directive Principles of State Policy in the Indian Constitution in the context of the environment, see generally.)

[15] India Const. art. 48A. (“The State shall endeavour to protect and improve the environment and to safeguard the forests and wildlife of the country.”) For a discussion of the legislative debate behind the origin of the amended Article, see also ibid, p. 45, n.21.

[16] India Const. art. 51A, cl. (g). (“To protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures;”).

[17] The Seventh Schedule of the Constitution delineates legislative power between the Centre and the States. List I (the Union List) comprises subjects over which only the Centre shall legislate. List II (the State List) comprises subjects over which only the State shall legislate. List III (the Concurrent List) contains subjects over which both entities may legislate, subject to a preference for the Centre pursuant to the doctrine of “occupied field”.

[18] See supra note. 5, 47. It has been pointed out that the Parliament has the power to legislate on virtually any subject in the State List by virtue of Entry 13 of the Union List, which covers participation in international conferences and the implementation of decisions made at the conferences.

[19] The National Environment Tribunal Act, 1995, No. 27, Acts of Parliament, § 19, 1995 (India).

[20] A.I.R 1996 S.C. 149 (India).

[21] A.I.R. 1996 S.C. 149 at 152[10] (India).

[22] A.I.R. 1996 S.C. 149 at 158[36] (India).

[23] A.I.R. 1996 S.C. 149 at 158[37]-159[38] (India).

[24] A.I.R. 1996 S.C. 149 at 159[39] (India).

[25] A.I.R. 1996 S.C. 149 at 159[40] (India).

[26] A.I.R. 1996 S.C. 149 at 159[42] (India).

[27] A.I.R. 1996 S.C. 149 (India).

[28] T.N. Godavarman Thirumulpad vs Union Of India & Ors, A.I.R. 2012 S.C. 1254 (India).

[29] (2014) 6 S.C.C. 590 (India).

[30]United Nations Conference on Sustainable Development, available at: http://en.wikipedia.org/wiki/United_Nations_Conference_on_Sustainable_Development#Outcomes.

[31] Brian J. Preston, The Role of the Judiciary in Promoting Sustainable Development: The Experience of Asia and the Pacific, 110, http://www.lec.justice.nsw.gov.au/agdbasev7wr/_assets/lec/m420301l721754/speech_10jan06 _preston.pdf.

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