CONSTITUTIONAL VALIDITY OF ODDEVEN RULE

The constitution of India obligates the state as well as citizens to protect and
improve the environment.
Preamble
At the very outset, the preamble of the Constitution of India provides that our
country is based on socialistic pattern of society where the state pays more
attention to the social problems than on any individual problems. The basic aim
of socialism is to provide decent standard of life to all, which can be possible
only in a pollution free environment.
Pollution is one of the social problems and the state is required under the
supreme law to pay more attention to this social problem and march towards the
avowed aim of just social order.
The preamble also declares India to be a democratic republic. In a democratic
set up, people have the right to participate in government decisions. Also people
have the right to know and access to information of government policies which
is very important for the success of environmental policies.
Article 246 of the Constitution
Article 246 divides the subject areas of legislation between Union and States.
This division is based on three lists, i.e., Union list, State list and Concurrent
list, which are given in VII schedule to the Constitution. The State list contains
66 subject-matters over which the state legislatures of different states. The
subjects mentioned in the State list, include public health. Thus the subjectmatters, the environmental impact of which is local, are left to be tackled at the
local level.
Fundamental rights
Article 21 of the Constitution of India guarantees all persons a fundamental
right to life and personal liberty. Article 21 guarantees a fundamental right to
life- a life of dignity, to live in a proper environment, free of danger of disease
and infection.

9A

In P.A JACOB V. SUPERINTENDENT OF POLICE,1 Kottayam, the Kerala

High Court observed that Article 21, right to life, comprehends right to a safe
environment, including safe air quality, safe from noise.
In VIRENDER GAUR V. STATE OF HARYANA,2 the Supreme Court
observed that environmental, ecological, air; water pollution, etc. should be
regarded as amounting to violation of Article 21.
Directive Principles of State Policy
Article 47 of the Constitution is one of the directive principles of the state
policy and it provides that the state shall regard the raising of the level of
nutrition and the standard of living of its people and the improvement of the
public health as among its primary duties.
The improvement of the public health will also include the protection and
improvement of environment without which public health cannot be assured.
The Constitution (Forty-Second Amendments) Act, 1976 added a new directive
principle in Article 48-dealing specifically with protection and improvement of
the environment.
It provides that the state shall endeavour to protect and improve the
environment and to safeguard the forests and wildlife of the country.
Fundamental duties
Under Article 51-a (g) it shall be the duty of every citizen of India to protect and
improve the natural environment including forests, lakes, rivers and wildlife,
and to have compassion for living creatures.
The fundamental duty imposed on every citizen is not only to the environment
quality if it has been polluted. Thus, the underlined emphasis of this
fundamental duty is that every citizen has a duty to make an endeavour to
preserve the environment in the same way as nature has gifted it to all of us.

1.AIR 1993 KER1.

2.AIR 1995 (2) SCC577

9A

Sustainable development
Sustainable development is essentially a policy and strategy for continued
economic and social development without detriment to the environment and
natural resources on the quality of which continued activity and further
development depend. The balance between environmental protection and
developmental activities could be maintained by strictly following the principles
of sustainable development. One of the principle as culled out from the
bruntdland report and other international documents such as Rio declaration and
Agenda 21, are as under is the the precautionary principle.
The main purpose of the precautionary principle is to ensure that a substance
or activity posing a threat to the environment is prevented from adversely
affecting the environment, even if there is no conclusive scientific proof of
linking that particular substance or activity to environmental damage. It means1. Environmental measures by the state government and the local authorities
must anticipate, prevent and attack the cause of environmental
degradation.
2. Where there are threats of serious and irreversible damage, lack of
scientific certainty should not be used as a reason for postponing
measures to prevent environmental degradation.
3. The onus of proof is on the actor or the developer/industrialist to show
that his action is environmentally benign.
In DELHI TRANSPORT DEPARTMENT, RE3 the Supreme Court while
showing its concern for the air pollution in Delhi held that precautionary
principle which is part of the concept of the sustainable development, has to be
followed by the state government in controlling pollution.
In M.C. MEHTA V. UNION OF INDIA4, the Supreme Court enunciated how
the precautionary principle must be used while framing an Auto Policy. The
Auto Policy must, therefore
1. Focus upon measures to anticipate, prevent and attack the cause of
environmental degradation in this field.
3.AIR 1998 (3) SCC 250.
4.AIR 2002 (4)SCC 356

9A

2. In the absence of adequate information, lean in favour of environmental

protection by refusing rather than permitting activities likely to be
detrimental.
3. Ensure that unless an activity is proved to be environmentally benign in
real and practical terms, it is to be presumed to be environmentally
harmful.
Besides precautionary principle there is also the principle of obligation to
assist and to co-operate. Principle 10 of the Rio declaration further provides
that environmental issues are best handled with the participation of all
concerned citizens, at the relevant level.
The Air (Prevention and Control of Pollution) Act, 1981
Under section 17 (a) and 17(b) of Air (Prevention and Control of Pollution)
Act, 1981, the state board shall plan a comprehensive programme for
prevention, control or abatement of air pollution and to secure that execution
thereof, and advise the state government on any matter concerning the
prevention, control or abatement of air pollution respectively.
Section 115 of the Motor Vehicles Act, 1988
The State Government or any authority authorised in this behalf by the State
Government, if satisfied that it is necessary in the interest of public safety or
convenience, or because of the nature of any road or bridge, may by
notification in the Official Gazette, prohibit or restrict, subject to such
exceptions and conditions as may be specified in the notification, the driving
of motor vehicles or of any specified class or description of motor vehicles
or the use of trailers either generally in a specified area or on a specified road
and when any such prohibition or restriction is imposed, shall cause
appropriate traffic signs to be placed or erected under section 116 at suitable
places: Provided that where any prohibition or restriction under this section
is to remain in force for not more than one month, notification thereof in the
Official Gazette shall not be necessary, but such local publicity as the
circumstances may permit, shall be given of such prohibition or restriction.

9A