India's Supreme Court is often hailed as a champion of the environment. However, when PhD student Mahesh Menon examined almost a hundred environmental judgements, a different picture emerged. Industry and the government's growth agenda were the winners in these rulings, while indigenous peoples, poor communities and future generations were the perennial losers.
How is the term sustainable development used in India's Supreme Court rulings? Mahesh Menon, a PhD student at Lund University's Faculty of Law and a former Indian lawyer, decided to investigate.
"Sustainable development is usually seen as a win-win situation where economic growth and environmental protection go hand in hand. I am sceptical of that view. In a society as unequal as India's, environmental conflicts are about distribution: whose land is taken, whose health is harmed, whose livelihood is sacrificed, and whose vision of the environment prevails? When a court claims to be 'balancing' environmental and development considerations, someone still has to pay the price. I wanted to find out who," he says.
Mahesh Menon has examined five areas of environmental conflict, ranging from industrial pollution to endangered species. In his doctoral thesis, he analyses court rulings spanning nearly three decades to determine the practical implications of judicial use of sustainable development.
From environmental protection to economic growth
Initially, the rulings of the Court prioritised the environment, even when this entailed economic costs. Over time, however, they have shifted towards weighing up different interests against one another, finally giving greater weight to development and economic growth.
"Across three decades, we see that the Court prioritises large-scale over small-scale, present benefits over future costs and the quantifiable over the intangible. The burdens of both pollution and nature conservation fall on the Adivasis (India's indigenous peoples), the urban poor, informal workers and future generations. The benefits systematically accrue to organised industry and the state's growth agenda," says Mahesh Menon.
The results surprised him. He designed his study specifically to resist reductionist explanations built on class and was open to different lines of advantage at once.
"What surprised me was that all these aspects converged. The same actors came out on top in every arena. The methodology I chose to avoid a class-based narrative ultimately led me back to something that looked very much like precisely that."
One of the most striking findings of the thesis is the extent to which the Court's use of sustainable development has shifted. The same Court that once declared that 'nobody has the right to pollute the environment' would, within two decades, use sustainable development to justify environmental degradation weighed against potential and expected economic benefits.
A flexible concept
According to Mahesh Menon, the point is not simply that sustainable development is a flexible concept. Rather, it is what happens when that flexibility enters a legal setting where courts are asked to balance radically different kinds of value.
As a balancing framework, sustainable development requires the Court to make incomparable things comparable: environmental protection against economic development, present needs against future sustainability, and local costs against national benefits. In this process, some forms of value become much easier to recognise than others.
In his thesis, Mahesh Menon argues that those who can quantify and articulate the benefits of development gain a systematic advantage in legal reasoning. Jobs, revenue, foreign exchange and investment can be presented as measurable gains. However, ecosystem integrity, community health, livelihood security, biodiversity and the ties of Adivasi communities to their land are far more difficult to express in the same terms.
"This is not simply a question of courts assigning greater weight to development claims within a balancing exercise. It is also about what legal reasoning is able to recognise. Interests that can be expressed in numbers tend to appear concrete and self-evident. Diffuse ecological harms or harms borne by communities are much easier to push into the background," says Mahesh Menon.
In that sense, not only does sustainable development fail to protect the environment, it also transfers environmental costs from the powerful to the powerless while maintaining the appearance of balance, proportionality and reconciliation.
The intention was to achieve equity
Mahesh Menon argues that sustainable development emerged from an equity claim raised at the Stockholm conference negotiations along the North-South divide: the countries least responsible for degradation should not bear the developmental costs of environmental protection. Yet in the Indian cases he examines, the concept often did the opposite, shifting environmental costs onto vulnerable communities. The irony is that while India has consistently argued in international environmental negotiations that developing countries should not shoulder a disproportionate share of environmental costs, its Court has often placed similar burdens on India's own marginalised communities.
Far beyond India
For Mahesh Menon, the significance of the thesis extends well beyond India. Many rapidly industrialising countries in the Global South face similar tensions between environmental protection and developmental aspiration. His study offers a cautionary account of what can happen when courts attempt to reconcile these competing demands through the language of balance and proportionality.
The question is becoming increasingly critical. During the period he studied, from 1996 to 2024, there was a growing global awareness of climate change, biodiversity loss and planetary boundaries. His research therefore raises broader questions about whether sustainable development can fulfil the role expected of it by policymakers, courts and international institutions.
As Mahesh Menon writes in the thesis, "If Sustainable Development could not hold the line even during this period of mounting pressure and widespread awareness, the question of its ability to "save us" is called into question. The question of what might replace it, or how it might be fundamentally reconceptualised, is an urgent one, not just for India, but for the planet."
