Environmental Laws and Constitutional Provisions in India
By: – V. Gopala Gowda former Supreme Court Judge
What makes planet earth so important and puts it on the map is its environment which can sustain life.
Man’s total environmental system includes not only the biosphere but also his interactions with his natural and manmade surroundings. The earth, its surrounding envelope of life-giving water and air, and all its living things comprise the biosphere. Larger ecosystems or combinations of ecosystems, which occur in similar climates and share a similar character and arrangement of vegetation, are biomes, for example the Arctic tundra, prairie grasslands, and the deserts. The ecology consists of the intricate web of relationships between living organisms and their living and non-living surroundings. These interdependent living and non-living parts make up ecosystems; e.g. forests, lakes and estuaries.
In the 21st century it is a well-known and understood fact that there exists a delicate balance in nature, a certain amount of imbalance the earth can cope with but indiscriminate exploitation of the natural resources, deforestation, immense pollution of land water and air leaves mother earth breathless. It was in the United Nations Conference on the Human Environment, held in Stockholm in 1972, that the concern for the environment was put on the world political map. The only Head of Government, besides the host country, to attend the conference was Indira Nehru Gandhi, the then Prime Minister of India. It was in that conference that she made the statement that one could not think of the environment without also looking at issues of poverty; that environmental issues and developmental ones were two sides of the same coin. It was indeed human ‘developmental’ activity that had a very substantial impact on the natural environment. And in turn, the rapid decline in the natural resource base was affecting the quality of human life in several parts of the globe, especially the lives of the poor and the marginalized.
This link between man’s developmental activity and the degradation of the environment was recognized in the form of the United Nations Conference on Environment and Development held in Rio de Janeiro, Brazil, in 1992. this conference was a far cry from the 1972 Stockholm conference 20 years ago, as because the Rio Conference went on to become one of the largest gatherings ever of Heads of State and Government, wherein they expressed their concern for the rapidly depleting resources and the rampant pollution being caused by human activities. But most importantly, Rio drew attention to two major and global crises. One was the realization that human activity was leading to the rapid extinction of several species. And secondly, that industrial activity was directly responsible for global warming and the thinning of the ozone layer that provided a shield from ultraviolet radiation.
However, this relationship between human developmental activities and environmental issues does not translate into bringing our developmental activities to a grinding halt. It merely requires that we pursue our goals keeping in mind that indiscriminate and thoughtless abuse of mother nature might threaten our very existence. The cry of the hour is to try to seek and attain sustainable development; wherein we use the resources to meet the needs of the present without compromising the ability of future generations to meet their own needs.
When India gained her independence our leaders realized that India needed to develop and this process would tremendously strain our natural resources and consequently the environment would be affected. And therefore, in their wisdom they included provisions in the Constitution to safeguard the same. The Indian Judiciary has itself has played a very activist role in this field of law and enforcement, and has laid down a plethora of environment friendly decisions. The concept of Public Interest Litigation (PIL) has further bolstered the law against environmental pollution and exploitation. The King of mass tort and PIL litigation, M.C. Mehta, has played a very crucial and pivotal role in the development of the law on environment pollution and conservation. That apart, the Indian Legislature has also played an active role and has passed laws like The Environment (Protection) Act, 1986, The Water (Prevention and Control of Pollution) Act, 1974, The Forests (Conservation) Act, 1980, The Wildlife (Protection) Act, 1972, Air (Prevention and Control of Pollution) Act, 1981 etc. Although there exist various laws to prevent pollution and to protect and preserve the environment these legislations lack teeth and they are yet to prove their effectiveness.
The Directive Principles of State Policy and the Fundamental Duties chapters explicitly enunciate the national commitment to protect and improve the environment. In this chapter, the researcher intends to cover the various Constitutional provisions with respect to conservation of natural resources, specifically Articles 21, 48A, 51A (g) and Article 253. That apart, the researcher shall also be dealing with the Seventh Schedule under which via Entries 13, 14, and 56 of the Union List; Entry 17 of the State List ; and Entries 17A and 17B of the Concurrent List the use, management and conservation of natural resources has been allocated between the Union and the states.
Water is a subject in the State List under the Constitution, and therefore, the Water (Prevention and Control of Pollution) Act, 1974, a central law, was enacted under Article 252 (1) of the Constitution, which empowers the Union Government to legislate in a field reserved for states, when two or more State Legislatures consent to a central law. All the states have approved the implementation of the Water Act as enacted in 1974.
The Environment (Protection) Act, 1986 is a watershed. The law generated a plethora of rules and regulations and facilitated delegation of powers from the Central Government to the various Central and State Government agencies through the length and breadth of the country. On top of all these measures, amendment to the Constitution incorporating the duties of improvement and protection of environment and empowering the local bodies to make people-friendly and eco-friendly decisions gave a fillip to the activities of the governmental and non-governmental institutions and organizations in the field.
Environmental law involves conservation of indigenous resources so that, they can be better made use of in the present day society as well as in the future generations. As in any other country, environmental law in India is developing through judicial decisions, statutory law alongwith with regulations, orders and bylaws. Also, the fact that is a member of the international community entails an obligation on India to carry out international treaty obligations and norms as propounded in international conferences by enacting suitable legislations.
In its present form, the Indian Constitution contains specific provisions on environmental protection and conservation. The Directive Principles of State Policy and the Fundamental Duties chapters explicitly enunciate the national commitment to protect and improve the environment. In the Directive Principles of State Policy in Chapter IV of the Constitution, Article 48A was inserted which enjoins the State to endeavour to protect and improve the environment and to safeguard the forest and wild life of the country. Another landmark provision in respect of environment was also inserted, as one of the Fundamental Duties of every citizen of India. This is the provision in Art. 51A (g) of the Constitution, which stipulates that it shall be the duty of every citizen of India ‘to protect and improve the natural environment including forests, lakes, rivers, and wild life and to have compassion for living creatures’.
Thus, our Constitution makes various provisions with respect to conservation of natural resources, specifically Articles 21, 48A, 51A(g), 253 which provide for protection of life and personal liberty as an individual’s right as against the State; protection and improvement of environment and safeguarding of forests and wild life as the States Duty; protection and improvement of the natural environment as an individual’s duty and legislation for giving effect to international agreements as the State’s obligation to the international community as a whole, respectively.
Article 48A was inserted into the Constitution of India, via S. 10 of the Forty Second (Amendment) Act, 1956 which stated very clearly that it is the duty of the state to “protect and improve the environment and to safeguard the forests and wildlife of the country.” Article 48A obligates the State to endeavor to protect and improve the environment and to safeguard the forests and wildlife of the country. There is at present a growing consciousness and awareness that suitable measures must be adopted to protect the environment, forests and wildlife.
That apart, in furtherance of the obligation placed on the Centre with respect to protection and conservation of environment, the Constitution (42nd Amendment) Act, 1976 moved forest, wildlife and population control from the State List to the Concurrent List. This enabled both the states and the Centre to make laws on these areas and to play a more meaningful role in this increasingly significant area. It is notable that this was done after the Stockholm Conference had aroused environmental consciousness at the global level and asked the state parties to enact environmental legislation.
The Supreme Court has clarified that whenever a problem of ecology is brought before the Court, it is bound to keep in mind Articles 48A and 51A (g) and cannot leave the matter entirely to the government. “the least that the Court may do is to examine whether appropriate considerations are borne in mind and irrelevance excluded. In appropriate cases, the Court may go further.”[1]
In M.C. Mehta v. Union of India,[2] the Supreme Court held “Articles 39(e), 47 and 48A 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.”
The challenge before the courts is to draw a balance between preservation of the environment and sustainable development. The courts have to adjust and reconcile between the imperatives of preservation of the environment and the development of the economy.[3]
Two principles, viz., “Precautionary Principle” and the “Polluter Pays Principle” have been developed by the Supreme Court. In M.C. Mehta v. Union of India,[4]the Supreme Court has issued several directions in order to protect the Taj Mahal from deterioration on account of environmental pollution.
Parliament has used its power under Article 253 read with Entry 13 of the Union List to enact the Air (Prevention and Control of Pollution) Act, 1981 and the Environment (Protection) Act, 1986.[5] The preambles to both laws state that these Acts were passed to implement the decisions reached at the United Nations Conference on the Human Environment held at Stockholm in 1972. At the conference, members of the United Nations agreed to work to preserve the world’s natural resources, and called on each country to carry out this goal.
The Rural Litigation & Entitlement Kendra v. State of Uttar Pradesh,[6] was the first case wherein the Supreme Court had an opportunity to look into the question as to how to bring about a balance between protection of the environment and development. In the instant case, the Supreme Court gave orders to shut down certain limestone quarrying industries which were causing ecological disturbance. In this context the Apex Court observed:
“… there can be no gain saying that limestone quarrying and excavation of the limestone deposits do seem to affect the perennial water springs. This environmental disturbance has however to be weighed in the balance against the need of limestone quarrying for industrial purposes in the country and we have taken this aspect into account while making this order.”
The case was filed under Art. 32 of the Constitution and orders were given with emphasis on the need to protect the environment. The Court obviously was evolving a new right to environment without specifically mentioning it.
The first time when the Supreme Court came close to almost declaring the right to environment in Art. 21 was in 1990, in Chhetriya Pardushan Mukti Sangharsh Samati v. State of Uttar Pradesh.[7] Subhash Kumar v. State of Bihar,[8] is the other notable case where the Supreme Court took a step forward. In Chhetriya Pardushan, Chief justice Sabyasachi Mukerji observed:
“Every citizen has a fundamental right to have the enjoyment of quality of life and living as contemplated in Article 21 of the Constitution of India.”
In Subhash Kumar, K.N. Singh, J. observed in a more vivid manner,
“Right to live… includes the right to enjoyment of pollution free water and air, full enjoyment of life.”
However, in both cases, the Court did not get an opportunity to apply the principles to the facts of the cases. The Court found that the petitioners made false allegations due to personal grudge towards the respondent companies alleged to be polluting the environment.
The real opportunity came before the Supreme Court in 1991 in Bangalore Medical Trust v. B.S. Mudappa,[9] when an interesting question as to whether an open space laid down as such in a development scheme could be leased out for a private nursing home had to be decided. The Court held that the open space could not be leased out to a private nursing home against the mandate of Bangalore Development Authority’s (BDA) scheme. The judgment did not refer to Art. 21 of the Constitution and the right to environment. However, Thommen’s, J. words are emphatic on the constitutional mandate for the protection of individual freedom and dignity and attainment of a quality of life, which a healthy and clean environment guarantees. The Apex Court held:
“Protection of the environment, open spaces for recreation and fresh air, playgrounds for children, promenade for the residents, and other conveniences or amenities are matters of great public concern and of vital interest to be taken care of in a development scheme… the public interest in the reservation and preservation of open spaces for parks and playgrounds cannot be sacrificed by leasing or selling such sites for conversion to other users. Any such act…would be in direct conflict with the constitutional mandate to ensure that any state action is inspired by the basic values of individual freedom and dignity and addressed to the attainment of quality of life which makes the guaranteed rights a reality for all citizens.”
Right to life was further expanded by the Supreme Court in recent years. In Consumer Education and Research Center v. Union of India,[10] what reformative and remedial actions are possible in respect of occupational diseases of workers in asbestos industry was the issue in the long pending public interest litigation filed by the petitioner, a research center. The Court said,
“Social security, just and humane conditions of work and leisure to workmen are as part of his meaningful right to life…”
Though, one cannot say that the recognition was clear and explicit, the right to humane and healthy environment is seen indirectly approved in the M.C. Mehta group of cases, decided by the Supreme Court. In the first M.C. Mehta case[11] the Court had to deal specifically with the impact of activities concerning manufacturing of hazardous products in the factory. It was alleged that the leakage of oleum gas from the factory resulted in the death of a person and affected the health of several others. The question was, whether or not the plant should be closed down. The Court laid down many conditions were laid down under which industries of hazardous products should be allowed to restart. In so doing the Court found that the case raised ‘some seminal questions concerning the scope and ambit of Art. 21 and 32 of the Constitution.’ By making such a comment, the Court was manifestly referring to the concept of right to life in Art. 21 and the process of vindication of that right in Art. 32. Thus in this case, the Court enlarged the scope of the right to life and said that the state had power to restrict hazardous industrial activities for the purpose of protecting the right of the people to live in a healthy environment.
Although the second M.C. Mehta case,[12] modified some of the conditions, the third M.C. Mehta case[13] posed an important question concerning the amount of compensation payable to the victims affected by leakage of oleum gas from the factory. The Court held that it could entertain a petition under Art. 32 of the Constitution, namely, a petition for the enforcement of fundamental rights, and lay down the principles on which the quantum of compensation could be computed and paid. This case is significant as it evolved a new jurisprudence of liability to the victims of pollution caused by an industry engaged in hazardous and inherently dangerous activity. Although it did not specifically declare the existence of a right to a clean and healthy environment in Art. 21, the Court evolved the principle of absolute liability of compensation through interpretation of the constitutional provisions relating to the right to live and to the remedy under Art. 32 for violation of fundamental rights. The premises on which the decision is rendered is clear and unambiguous— the fundamental right to a clean and healthy environment. Thus, in this case the Court took a step forward and held that read with the remedies under Art. 32 including issuance of directions for enforcement of fundamental rights, the right to live contains the right to claim compensation for the victims of pollution hazards.
Courts in India slowly but steadily enlarged
the scope of the concept of quality of life and living and applied it to
various issues affecting the environment. However, the contributions of the
High Courts in this area were hardly acknowledged. The courts mainly relied on
right to life in Art. 21, although certain cases had the prospect of the
constitutional provisions bearing on environment, especially those among
Fundamental Rights, Directive Principles and Fundamental Duties. Besides,
environment being a compendium of many things, the expression ‘person’ in Art.
21 may be interpreted as an entity having legal personality. Judicial activism
has reached such heights that when the written law is found to be weak courts
readily rely on the quality of life for removing environmental hazards.
See, Sri Sachidanand Pandey v. State of West Bengal, AIR 1987 SC 1109
See, JT (2002)3 SC 527
See, Vellore Citizen’s Welfare Forum v. UOI, (1996) 5 SCC 647; see also Indian Council for Enviro-Legal Action v. UOI, (1996) 2 SCC 196.
See, AIR 1997 SC 734
[5] See, S. Jagannath v. Union of India (Shrimp Culture Case), AIR 1997 SC 811
See, AIR 1985 Supreme Court 652
[7] See, AIR 1990 SC 2060
See, AIR 1991 SC 420
See, AIR 1991 SC 1902
[10] See, AIR 1995 SC 922
[11] See, M.C. Mehta v. Union of India, AIR 1987 SC 985
See, M.C. Mehta v. Union of India, AIR 1987 SC 982
See, M.C. Mehta v. Union of India, AIR 1987 SC 1086
