The principle of non-regression and Indian Environmental Jurisprudence

Bar & Bench July 26 2018
non-regression

By Anitha Shenoy

The azure skies of our childhood are gone. They have been replaced by skies that are mostly opaque, white or grey. The reason for this is not far to find. India's environmental quality has seen a steady decline in the last few years. With 14 of the 15 most polluted cities being located in India, Indians are forced to drink and inhale a toxic cocktail of chemicals and gases with disastrous consequences on health. This despite constitutional safeguards and expansive judicial interpretation re environmental issues, since the 1980s.

The role of the Judiciary has been critical in protecting the right to a clean environment. Constitutional courts have given an expansive definition to the right to life, to include the right to clean air, clean water, and the right to a clean environment. The Supreme Court has in its various judgments, relied upon principles of Environmental Law, such as the ‘Polluter Pays principle’, the ‘Precautionary Principle’ etc., which now enjoy statutory recognition in the National Green Tribunal Act of 2010.

In addition to the above, the Supreme Court in M.C Mehta Versus Kamal Nath [1] declared the 'Public Trust Doctrine' as the law of the land, and this principle has been applied in a number of cases, including notably in the case of Spectrum Allocation[2].  It may also be useful to refer to certain portions of the judgment of the Supreme Court in the case of Fomento Resorts & Hotels Ltd. v. Minguel Martins, (2009) 3 SCC 571 by way of illustration:

“55. The public trust doctrine is a tool for exerting long-established public rights over short-term public rights and private gain. Today every person exercising his or her right to use the air, water, or land and associated natural ecosystems has the obligation to secure for the rest of us the right to live or otherwise use that same resource or property for the long-term and enjoyment by future generations…”

Further, the Supreme Court has been responsible for changing the focus of environmental law from an 'anthropocentric' to an 'eco-centric’ approach, being cognizant of the fact that principles like ‘Sustainable Development’, 'Polluter Pays Principle', and the 'Public Trust doctrine' were focused on the welfare of human as opposed to non-human species. Thus, new principles such as the ‘Eco-centric principle’[3] and the ‘Species Best Interest Standard’[4] and the understanding that ‘animal also has honour and dignity which cannot be arbitrarily deprived of and its rights and privacy have to be respected and protected from unlawful attack’[5] ,  have now become an integral part of environmental jurisprudence.

While there have been progressive developments of environmental jurisprudence, in recent times, there have unfortunately been several regressive amendments to Statutory laws on the environment.  The laws impacted by this dilution are the Environment Impact Assessment Notification, 2006, Wetland Rules, 2010, Coastal Regulation Zone Notification, 2011. These dilutions have been challenged before different fora. In the process of adjudication of one such dilution, the principle of non-regression, thus far, a principle of human rights jurisprudence, has been extended to environmental law.

The Principle of Non-Regression

The principle of non-regression, in the context of international human rights law, and particularly in the context of Social, Economic and Cultural Rights is generally understood to mean the obligation of states to not take regressive measures, as in doing so they would be departing from their obligation to take steps for the progressive realization of these rights.[6]

According to the International Union for the Conservation of Nature (IUCN), "the principle of non-regression is an international law principle . . . requiring that norms which have already been adopted by states not be revised, if this implies going backward on the subject of standards of protection."[7]

In the context of International environmental law, ‘the principle of non-regression prohibits any recession of environmental law or existing levels of environmental protection and comprises its protective norms in the category of non-revocable and intangible legal rules, in the common interest of humanity.’[8]

Some scholars[9] have traced the origins of the principle of non-regression in International Environmental Law to the Rio 20+ outcome document (The future we want). [10] The outcome document states in Paragraph 20 that it is critical that we do not backtrack from our commitment to the outcome of the United Nations Conference on Environment and Development.” Of course, the scope and ambit of non-regression, as a principle, is far wider that the phrase ‘do not back track’.

The principle of non-regression has been applied for the first time in Indian environmental jurisprudence by the National Green Tribunal while deciding on the legality of a Notification issued by the Ministry of Environment, Forest and Climate Change exempting building and construction projects up to 1,50,000 Sq. mts. from the purview of Environmental law. The National Green Tribunal, while directing the MoEF & CC to re-examine the impugned notification, and rectify, delete and amend its clauses in light of the Tribunal’s judgment, highlighted that the Principle of Non-Regression means that environmental law should not be modified to the detriment of environmental protection.

The Future of the Principle

Given the increasing threat to the environment, one would have expected that environmental laws would move in the direction of being more stringent and prescribe higher environmental standards. Unfortunately, the reverse is true. There is a need for Constitutional Courts to apply and elaborate upon the Principle of Non-Regression, in order to ensure there is no dilution of environmental law at a time when the environment is in most need of protection. Protection of the environment can no longer wait for the future generations-the consequences of environmental degradation are felt most by the present generation.

Anitha Shenoy is an Advocate at the Supreme Court of India. 

[1] [(1997)1 SCC 388]

[2] (Centre for Public Interest Litigation and Ors. v. Union of India and Ors. reported in (2012) 3 SCC 1).

[3] Centre for Environmental Law, WWF-India v. Union of India and Ors. reported in (2013)8SCC234,

[4] Ibid

[5]  Animal Welfare Board of India v.  A Nagaraja and Ors. reported in (2014)7SCC547,

[6] Economic, Social and Cultural Rights in International Law, Manisuli Ssenyonjo, Hart Publishing, 2009, (also see, Prohibition Of Retrogression: Effectiveness Of Social Rights In The Finnish System Of Constitutional Review, Laura Kirvesniemi, (Master’s thesis University of Helsinki), August 2015

[7] Non-Regression Principle Knowledge Forum,  https://www.iucn.org/content/non-regression-principle-knowledge-forum (Last seen 27.7.2018)

[8]  (M. Prieur 'Le principe de non régression en droit de l'environnement, condition du développement durable', RADE, 2013).

[9] Understanding the Notion of Non-Regression, International Law Spot, https://intlawspot.wordpress.com/2015/08/24/understanding-the-notion-of-non-regression/ ( last seen 24.7.2018)

[10] Future We Want-Outcome Document, https://sustainabledevelopment.un.org/futurewewant.html (last seen 24.7.2018)