Sustainable Development Law & Policy Volume 10 Issue 1 Fall 2009: Sustainable Development in the Article 12 Courts Towards a Jurisprudence of Sustainable Development in South Asia: Litigation in the Public Interest Shyami Fernando Puvimanasinghe Follow this and additional works at: http://digitalcommons.wcl.american.edu/sdlp Part of the Environmental Law Commons, and the Public Law and Legal Theory Commons Recommended Citation Puvimanasinghe, Shyami Fernando. "Towards a Jurisprudence of Sustainable Development in South Asia: Litigation in the Public Interest" Sustainable Development Law & Policy, Fall 2009, 41-49, 86-87. This Feature is brought to you for free and open access by the Washington College of Law Journals & Law Reviews at Digital Commons @ American University Washington College of Law. It has been accepted for inclusion in Sustainable Development Law & Policy by an authorized administrator of Digital Commons @ American University Washington College of Law. For more information, please contact [email protected]. towarDS a JuriSpruDence of SuStainable Development in South aSia: litigation in the public intereSt by Shyami Fernando Puvimanasinghe* This paper presents an updated version of part of a chapter these cases has, within limits, been liberalized from the need to in “Foreign Investment, Human Rights and the Environment: be an aggrieved person, to simply being a person with a genu- A Perspective from South Asia on the Role of Public Interna- ine and sufficient concern. In addition, class actions allow one tional Law for Development,” published by Koninklijke Brill suit in the case of multiple plaintiffs and/or defendants, and have NV, Leiden, The Netherlands, in 2007, which in turn consisted of been useful in this area. an adapted version of the author’s PhD thesis. Before the Bhopal disaster, PIL emerged as a tool in cases of social injustice, for instance bonded and child labor, and issues InTroducTIon of public accountability, like illegal payments to public officials. outh Asia, according to the grouping of the South In relation to challenges to development projects, Indian courts Asian Association for Regional Cooperation, consists had consistently been slow to interfere with projects beneficial Sof Afghanistan, Bangladesh, Bhutan, India, Maldives, to development.3 In the case of the Sardar Sarovar Dam Project, Nepal, Pakistan and Sri Lanka. Although Southern Asia is by PIL was invoked by the Narmada Bachao Andolan, challenging and large one of the economically poorest regions of the world, the failure to ensure rehabilitation for millions of persons dis- it is rich in non-economic terms—ecological, historical, cultural, placed by the construction of over 300 dams across the Narmada ethical, philosophical, and spiritual. The Indian sub-continent is river. Protracted litigation ended years later in 2000.4 The main home to a value system involving the spiritual, ethical, individ- catalyst for the evolution of PIL was the Bhopal disaster. In its ual, and collective dimensions of human life, which are all inter- immediate aftermath, the victims of this catastrophic industrial connected and require mutual accommodation, as all phenomena accident first brought action against Union Carbide in India. The in nature are united in a physical and metaphysical relationship. Indian government then passed legislation, assumed the role of Religious traditions and philosophical thought in Southern Asia parens patriae, and filed suit against the parent company in the find close links with justice, equity, and sustainable develop- US, on behalf of the victims. This course of action was largely ment; non-violence and compassion for all; reconciliation, har- due to lack of legislation, enforcement capacity, and legal mony, equilibrium and the middle path; equitable distribution resources in India at that time. The ensuing case of In re Union of resources and moderation in consumption. Throughout the Carbide Corp. Gas Plant Disaster5 concerned liability and com- colonial and post-colonial history of most of the countries in the pensation for thousands of deaths and personal injuries. How- region, however, the traditional wisdom of holistic approaches ever, the case was sent back to India on the basis of forum non to development have been gradually replaced by globally domi- conveniens. Finally, it was settled out of court, and the settlement nant models of economic development and today the problems was given judicial assent in the Supreme Court of India.6 Thus of development versus the environment and human rights, pov- the issue of liability was never adjudicated by a court of law. erty, pollution and overpopulation: indiscriminate liberalization Under the settlement, Union Carbide was to pay $470 million, and urbanization are commonplace. generally thought to be inadequate.7 Poor implementation means In a variety of issues ranging from a massive leakage of that victims of Bhopal lacked redress for decades, as highlighted methyl-isocyanate gas to phosphate mining, and from the noise on the 20th anniversary of the disaster, on December 3, 2004.8 of a thermal power plant generator to Genetically Modified The realization of the total incapacity of the host state legal 1 Organisms, public interest litigation (“PIL”) has evolved as a system to deal with such a disaster led to the passage of envi- 2 popular tool in the South Asian region since the mid-1980s. It ronment-related laws and litigation in India in the years imme- has taken diverse forms, like representative standing, where a diately following the Bhopal accident. Most states in the region concerned person or organization comes forward to espouse the have since invoked legislative, constitutional, and judicial cause of poor or otherwise underprivileged persons; and citizen mechanisms to further environmental protection and sustainable standing, which enables any person to bring a suit as a matter of public interest, as a concerned member of the citizenry. Given * Having served as a Senior Lecturer, University of Colombo, Sri Lanka, and the various and numerous classifications that divide the social worked for human rights, health, HIV/AIDS, environment and development in fabric in this region, it is fair that poor, illiterate, legally-illit- non-governmental organizations in Gaborone, Botswana, the author, a Senior erate, minority, low caste, and other disadvantaged and under- Research Fellow, Centre for Sustainable Development Law, McGill Univer- sity, Montreal, Canada is currently employed in the intergovernmental sector privileged persons gain access to justice through distortions of in Geneva, Switzerland. This article represents the views of the author in her traditional doctrines of standing. The test for locus standi in personal capacity. 41 SuStainable Development law & policy development, and their experience can be informative for other appointing a Commissioner to examine and study the scheme developing countries.9 Legislation for environmental protection and report back to it. has now been passed in most countries in South Asia.10 This A body of jurisprudence on sustainable development and includes provisions requiring environmental impact assessments its domestic implementation has evolved in India.19 Most other for development projects, statutory environmental pollution countries in the region have followed in the same direction. control by administrative agencies,11 and environmental stan- Their various efforts viewed collectively point to the evolu- dards for discharge of emissions and effluents.12 tion of a body of regional, or comparative, jurisprudence on Several constitutions in the region recognize an obligation issues of development and environment with an overt human of the state as well as citizens, to protect the environment.13 In rights dimension, largely through the agency of citizen involve- addition, the right to life (and liberty) is enshrined in some con- ment, legal representation in the public interest, and judicial stitutions14 and has been interpreted innovation. The contribution of by the judiciary to include the the judiciary—especially the right to a clean and healthy envi- higher judiciary—is striking, ronment.15 In the Indian case of Heightened sensitivity especially in the light of the Subash Kumar v. State of Bihar, lesser commitment to sustain- the petitioner filed a public inter- and concerted action ability on the part of most est litigation pleading infringe- third world politicians. The ment of the right to life arising in the judiciary, legal case law should in principle from the pollution of the Bokaro be applicable to both global River by the sludge discharged profession, and civil and local business, provided from the Tata Iron and Steel Com- that transnational corporations pany, alleged to have made the society have helped to can also be subject to domestic water unfit for drinking or irriga- law in host states. Most of the tion. The court recognized that the create an expanded cases concern local industries, right to life includes the right to notion of access to but some also deal with trans- enjoyment of pollution-free water national business. Whatever and air. It stated that if anything justice and to foster the the factual context may be, endangers or impairs the qual- the legal issues are the same, ity of life, an affected person or phenomenon of [Public and the legal principles have a genuinely interested person can been applied to the balancing bring a public interest suit, which Interest Litigation]