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Nalsar Review

Nalsar Review

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Published by harry_dude

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Published by: harry_dude on Sep 29, 2009
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07/10/2014

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Abstract
This article critically analyze the intention of the legislators in introducing the42
nd
Constitutional Amendment Act, 1976 thereby inserting Article 48-A and 51A(g)which gave vision to environmentally blind Constitution. The article would analyze thepositive and negative aspects of the said 42
nd
Constitutional Amendment on the approachof the legislature, judiciary and executive towards environmental protection. The articlewould work under the hypothesis that why the legislators at that time did not introducethe right to environment as fundamental right and instead put it under DirectivePrinciples and Fundamental Duty which are non-enforceable because within few years of the said amendment the Supreme Court through its creative interpretationhas interpretedArticle 21 to include within itself ‘right to environment’ and has read Article 48-A andArticle 51A(g) complementary to fundamental right thereby giving judicial enforceabilityto ‘right to environment’ and since then significant changes have been made forprotection and improvement of environment in India. At the comparative level atleast 50different countries and 21 individual states within the United Statesrecognize some formof the constitutional right to a healthy environment. The right to a healthful environmentis also recognized in Stockholm Declarationwhichstatesthat, "Man has the fundamentalright to freedom, equality, and adequate conditions of life in an environment of a qualitythat permits a life of dignity and well being...." Hence the problem of enforcement of environmental justice in relation to the 42
nd
Constitutional Amendment would also beanalyzed in this article. Finally, the article would conclude by justifying the need forcreating right to environment in the text of the constitution which would bring inuniformity in approach towards protection and preservation of environment and wouldensure effective environmental justice.
 
APPROACH OF THE 42
nd
CONSTITUTIONAL AMENDMENT ACT, 1976 TOENVIRONMENT-A CRITICAL STUDYHareesh GuptaStudent of LL.M. 2
nd
YearDr. RML National Law University,Lucknow-226012,E-mail:hareeshgupta2008@gmail.comINTRODUCTION
The legislature is arguably the most important actor in prescribing environmentalstandards in India.Four years after the Stockholm Conference, the forty secondamendment
1
to the Constitution introduced certain significant provisions relating to thesubject ‘ecology and environment’. The Indian Constitution at that time was the firstconstitution in the world which made provision for the protection of environment andbefore that absence of any constitutional concern for the environment led juriststo regardtheIndianConstitution as suffering from environmentalblindness.
2
This environmentalblindness was adequately reflected in the functioning of the legislature. Until 1974, thegeneral law of crimes
3
governed pollution and public health related matters.
4
It was notuntil the Stockholm Conference
5
that the environmentbecame a matter of serious debatein India.
6
Environmental ‘protection and improvement’ were explicitly incorporated intothe Constitution by the Constitution (Forty-Second Amendment) Act of 1976. Article48A was added to the Directive Principles of State Policy. It declares: ‘The state shallendeavour to protect and improve the environment and to safeguard the forests andwildlife of the country’. Article 51A(g) in a new chapter entitled ‘Fundamental Duties’,
1
The Constitutional (Forty-second Amendment) Act, 1976, which came into force with effect from 3
rd
January, 1977
2
M.K. Ramesh, Environmental Legislation and Implementation in India, in ENVIRONMENTALMANAGEMENT: AN INDIAN PERSPECTIVE 239 (S.N. Chary et al. eds., 1999)
3
Indian Penal Code, 1860 (Act 45, 1860) §§ 268-270, 277-78
4
Robati C. Das, How Effective are the Air and Water Pollution Control Acts, 23
 INDIAN B. REV.
171, 174(1996)
5
Declaration of the U.N. Conference on the Human Environment, June 16, 1972, U.N. Doc.A/CONF.48/14/Rev. 1 (1973), reprinted in 11 I.L.M. 1416(1972) [hereinafter Stockholm Declaration]
6
Bharat Desai, Environmental Laws: Some Reflections, 23
 INDIAN B. REV.
189 (1996)
 
imposes a similar responsibility on every citizen ‘to protect and improve the naturalenvironment including forests, lakes, rivers and wildlife, and to have compassion forliving creatures.’ Although the language in the two Articles differs, the differences appearto relate to form rather than to substance.Thus, the 42
nd
Constitutional Amendment didnot confine the constitutional obligation to protect and improve environment only in thehands of the state but brought the obligation down to the level of the citizens also. Thisamendment is considered to be a revolution, as it was not only first of its kind inconstitutional history expressing concern for environment and its protection, but it alsoaccorded recognition to Buddhist and Gandhian
7
environmental ethics, as Article 51A(g)made it a fundamental duty for all the citizens of India not only to protect and improvethe natural environment but also to have compassion for all living creatures. Anothersignificant aspect of Articles 48A and 51A(g) is that the state and its citizens shall notonly protect the environmentbut must also improve it. One can now very emphaticallyassert that by raising the protection and improvement of environment to thestatus of constitutional law, the “third generation” human right which is very important not onlyfrom the individual point of view but also from the point of view of the community atlarge has got its due place in the national charter of India. It is submitted that byincorporating this third generation human right under both Directive Principles of StatePolicy and Fundamental Duties of citizens, an endeavour has been made to makeenforcement of this right mandatory for both the state and its citizens. Together, theprovisions highlight the national consensus on the importance of environmentalprotection and improvement and lay the foundation for a jurisprudence of environmentalprotection. There was considerable debate in Parliament over the wording of draft Article48A. In the Lok Sabha,several amendments were moved of one of them required thestateto ‘conserve and develop the water, soil, and other natural resources’, while anotherproposed to ensure that the state’s efforts to protect and improve the environment wouldnot harm the tribal forest dwellers. None of these amendments were accepted by thegovernment, which took the position that the broad terms of directive principles need not 
7
According to Budhism and Gandhism one should have compassion towards every living creature.

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