THE INDIAN CONSTITUTION AND ENVIRONMENT

PROTECTION
Introduction: The Constitution is known as the ‘basic law of the land’ from which all
other laws derive their sanctity or validity. Therefore, it must be ‘a living and growing
law, meaning it must be able to cope with the newer situations and development. That is
why, as and when it is felt that a special situation has arisen and the present
constitutional
provisions are not adequate and cannot deal with the new development effectively, they
are amended by Parliament from time to time. The then Prime Minister of India, Mrs
Indira Gandhi, was the first head of State to address the first International Conference
on
Human Environment at Stockholm in 1972, and voiced deep concern about the
degradation of the environment and eco-imbalances. She also emphasized that
pollution,
population and poverty are interrelated problems and there must be an integrated
approach to deal with them. India was also one of the signatories of the Stockholm
Declaration which is known as the Magna Carta on Human Environment. Therefore, to
fulfill its promise made at the Stockholm Conference, the Indian Parliament passed the
forty-second amendment to the Constitution in 1976 and incorporated specially two
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Articles relating to protection and improvement of the environment. Thus, India became
the first country in the world to have provisions on the environment in the Constitution.
Constitutional and International Obligations
The Constitution of India, under Chapter XI, provided for legislative relations between
the Centre and State Governments. It provides a scheme under which the Centre and
the
States can make laws on the items provided in the Union List and State List attached
with
the Seventh Schedule. Article 253 of the Constitution empowers Parliament to legislate
on any matter for implementing the international obligations and decisions taken at the
international conference, association or other body's meeting.
Under Article 253, implementing the decisions of the Stockholm Conference of 1972,
which was an international conference, was within the competence of the Parliament
and
accordingly Parliament passed many laws, viz. the Water (Prevention and Control of
Pollution) Act, 1974, the Water (Prevention and Control of Pollution) Cess Act, 1977 and
the Air (Prevention and Control of Pollution) Act, 1981. The Environment (Protection)
Act of 1986 has also been passed to implement decisions arrived at the International
Conference at Stockholm (1972) to preserve natural resources. Thus, inclusion of
Articles
48-A and 51-A(g) relating to environment was a reassertion of the powers of Parliament
provided under Article 253. Thus, in a way it was an implementation of the international
obligation of the country as per the decisions taken at the Stockholm Conference of
1972.
It is to be noted that this power of the Indian Parliament has never been disputed.
Moreover, it is an enabling provision for the Parliament to legislate on the various
aspects
of environmental laws.
List III (Concurrent List) of Schedule VII also provides power to the Indian Parliament
on various aspects related to the environment. This list includes subjects like forests,
protection of wildlife, mines and minerals’, development, population control and family
planning, and minor ports and factories. Exercising its powers, Parliament has passed
various laws on these subjects.
Constitution and Forty-Second Amendment of 1976
Originally the Indian Constitution of 1950 did not have explicit reference to environment
protection, so there was no independent and separate provision dealing with the
protection or improvement of the environment. But taking note of the Stockholm
Conference and growing awareness for environmental pollution and eco-imbalances,
the
Indian Parliament passed a historic amendment – 42nd Constitution Amendment Act,
1976. This 42nd Amendment incorporated two significant Articles - Articles 48-A and 51-
A(g) to protect and improve the environment.
Article 48-A: ‘The State shall endeavour to protect and improve the environment and to
safeguard the forests and wildlife of the country.’
Article 51-1(g): ‘It shall be a duty of every citizen of India...(g) to protect and improve
the natural environment including forests, lakes, and wildlife and to have compassion for
living creatures.’
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Right to Pollution free and Healthful Environment - Fundamental Right
The Environmental laws which have been passed by the Parliament and State
legislatures
are based on the recognition of clean environment as a human right or fundamental
right.
As it has been recognized that a clean environment is the basic need for the survival of
humanity and it cannot be ensured without ecological balance, thus, this right belongs to
all as survival of mankind depends on clean, healthful or pollution-free environment. Any
attempt to defile, damage the natural environment would amount to violation of the
human right to a clean environment. The Stockholm Conference of 1972 also declared
that ‘man has the fundamental right to freedom of equality and adequate conditions of
life, in an environment of a quality that permits a life of dignity and well-being...’
Chapter III dealing with ‘fundamental right’ (Articles 12 to 35) does not have any direct
bearing on environmental degradation or eco-imbalances, and has not even referred to
these words at all. But the judicial pronouncements of the Supreme Court of India and
State High Courts have significantly contributed in giving a newer and finer perspective
to environment protection in the form of fundamental right. The Courts, while dealing
with environmental cases, have referred and based their judgments on Right to Equality
(Article 14), Right to Life (Article 21), Right to Freedom of Trade and Commerce
[Article 19(1)(g)]. We will study various aspects of right to healthful, pollution-free
environment vis-a-vis fundamental rights provided under Chapter III of the Indian
Constitution.
The Constitutional Scheme to protect and preserve the environment has been provided
under Articles 21, 48-A and 51-A(g) which includes fundamental right to have healthful
& pollution free environment, constitutional obligation of the State and fundamental duty
of all the citizens of India to protect and improve the natural environment. The Supreme
Court has clarified it in many cases. It has also been observed by the court that this
scheme is based on the ‘constitutional policy of sustainable development which must be
implemented.’
It is also to be noted that Articles 14, 21, 48-A of the Constitution of India must be
applied both in relation to an executive action as also in relation to a legislation. In
judicial review of the executive and legislation can be made, may be on different
principles. Ecological principles are relevant consideration in continuing town planning
statutes.
Right to Equality and Environment
The Indian Constitution guarantees ‘right to equality’ to all persons without any
discrimination. This indicates that any action of the ‘State’ relating to environment must
not infringe upon the right to equality as enshrined in Article 14 of the Constitution.
The Stockholm Declaration, 1972 also recognized this principle of equality in
environment management and it called up all the world's nations to abide by this
principle.
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PALLAVI BHOGLE 10
The Courts in India, on various occasions, have struck down the arbitrary official
sanction in environmental matters on the basis that it was violative of Article 14 (Right to
equality) because sometimes arbitrary grant of lease and indiscriminate operation of
mines may jeopardize the wildlife and natural wealth of the nation. It has also been
made
very clear that where arbitrariness and perversion are writ large, the Court has no option
but to issue a writ to advance public interest and avoid public mischief which are the
paramount considerations.
In Kisan Bhagwan Gawali v. State of Maharashtra the exclusion of a particular class of
grazers from consideration and inclusion of some on the ground that the excluded class
was indulging in illegal grazing is violative of Article 14 and invalid. Such a policy
decision is against the right to equality.
The Gujarat High Court declared that imposition of restriction on the trade and operation
of melting gold and silver ornaments by running furnaces and thus causing nuisance is
not unreasonable and violative of Article 14 of the Constitution.
It has aptly been observed that ‘concept of social justice and equality are
complementary
to each other and practical contents of right to life.’
Freedom of Trade and Commerce and the Environment
Most of the pollution is mainly from trade and business - particularly from industries. It
has been found that tanneries, acid factories, tie and dye factories, distilleries and
nowadays the hotel industries are contributing to environmental pollution. Thus, it all
relates to fundamental right to freedom of trade and commerce/business guaranteed
under
Article 19(1)(g) of the Indian Constitution. Some of these industries or
businesses/trades
are carried on in a manner which endangers vegetation cover, animals, aquatic life and
human health. But, time and again, it has been made clear that this freedom of trade
and
commerce is not absolute and is subject to certain reasonable restrictions. Therefore,
any
trade or business which is offensive to flora or fauna or human beings cannot be
permitted to be carried on in the name of the fundamental right.
In M.C. Mehta v. Kamal Nath, the Supreme Court made it abundantly clear that if a
hotel
is discharging untreated effluent into the river Beas, thereby disturbing the aquatic life
and causing water pollution, it cannot be permitted to work. ‘Any disturbance of the
basic
environment elements, namely air, water and soil, which are necessary for life, would be
hazardous to life’. Thus, the court in the exercise of jurisdiction under Article 32 cannot
only award damages but can also levy ‘fine’ - exemplary damages on the erring industry
/
hotel which will act as a deterrent for others not to cause pollution.
In Wing Commander Utpal Barbara v. State of Assam, the Court declared that a total
ban
on the use of polythene bags by the magistrate by issuing an order under Section 144
of
the Criminal Procedure Code, 1973 is violative of freedom of trade and business. The
remedy instead of a ban could have been to take appropriate steps regulating its use
and
disposal and to resort to appropriate legislation for it.
Right to Life and Right to Clean, Healthy Environment
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PALLAVI BHOGLE 11
Article 21 of the Indian Constitution, though it guarantees right to life and personal
liberty, does not directly confer right to clean, unpolluted and healthy environment. But
the various judicial pronouncements on various occasions have expanded the right to
life
and personal liberty to include this right by recognizing various ‘unarticulated liberties’
as recognized implicitly by Article 21.
In M.C. Mehta v. Kamal Nath, Justice Saghir Ahmad explained that, “in order to afford
protection to ‘life’, in order to protect the ‘environment’ and in order to protect ‘air, water
and soil’ from pollution, this court through its various judgments has given effect to the
rights available, to the citizens and other persons alike, under Article 21 of the
Constitution.” It was clarified by the Supreme Court that ‘any disturbance of the basic
environment elements, namely air, water and soil, which are necessary for ‘life’, would
be hazardous to ‘life’ within the meaning of Article 21 of the Constitution'.35 Various
provisions of the other environmental laws, e.g. provisions of the Water (Prevention and
Control of Pollution) Act, 1974, or the Air (Prevention and Control of Pollution) Act,
1981 have also been enforced by the Court under Article 21 of the Constitution.
All this means that the right to life means
(a) right to live with human dignity and
(b) the quality of life as understood in its richness and fullness by the ambit of the
Constitution.
It also ‘encompasses within its fold, some of the finer facets of human civilization which
make life worth living.’
Thus, this includes the right to have a ‘living environment’ congenial to human
existence.
Any activity which pollutes the environment and makes it unhealthy, hazardous to
human
health or health of flora and fauna, is violative of right to have ‘living environment’,
implicitly guaranteed by Article 21. Similarly, ‘the slow poisoning by the polluted
atmosphere caused by environmental pollution and spoilation should also be regarded
as
amounting to violation by Article 21 of the Constitution.’ And the fulfillment guaranteed
by Article 21 also embraces the protection and preservation of Nature's gift without
which life cannot be fully enjoyed.
Right to Constitutional Remedies and Environment
A survey of the cases related to environment pollution and eco-imbalances reveals that
most of the cases were filed under Articles 32 and 226 of the Constitution of India.
Artic1e 32 is one of the fundamental rights - known as ‘right to constitutional remedies’
for the enforcement of the fundamental rights.
This constitutional duty of protection of fundamental rights has been cast on the
Supreme
Court of India under Article 32 and on the State High Courts under Article 226 of the
Constitution. The Courts while granting relief to the aggrieved and checking activities
injurious to environment have issued orders, directions and writs from time to time.
Under Public Interest Litigation (PIL) Courts possess wide powers to grant relief and
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PALLAVI BHOGLE 12
prevent any activity endangering humans and damaging the environment. A PIL can be
brought by any public-spirited person, who may not be an aggrieved person, for a
common cause or against any activity or conduct which adversely affects the public at
large or group of persons. Even a voluntary organization can initiate Public Interest
Litigation.
Article 32 is a fundamental right and the Supreme Court of India entertains a writ
petition
for the enforcement of fundamental rights. Since the denial of the right to clean,
healthful
and unpolluted environment and its various attributes have been recognized by the
Supreme Court as violative of right to equality [Article 14], right to freedom [Article
19(1)], right to life [Article 21], the Supreme Court has issued orders, directions and
writs
of mandamus. certiorari, etc from time to time. Similarly, the High Courts of the States
are also empowered to issue orders, directions and writs under Article 226 for the
enforcement of fundamental rights.
Pollution Fine (Exemplary Damages)
In a PIL initiated by Shri M.C. Mehta (M.C. Mehta v. Kamal Nath), the Supreme Court
declared that powers of the Court under Article 32 are not restricted and it can award
damages in a PIL and in addition to damages available under the ‘Polluter Pays
Principle', the person held guilty of causing pollution can be held liable to pay
‘exemplary damages’ so it may act as deterrent for others not to cause pollution. In this
case M/s Span Motel was found guilty of interfering with the natural flow of a river, and
thus disturbing the environment and ecology of the area. The Court also proposed to
award pollution fine on the industry. The Court made it clear that powers under Article
32 are not restricted and it can award damages under PIL or a writ petition.
Directive Principles of State Policy and the Environment
Chapter IV (Article 36 to Article 51) deals with the Directive Principles of State Policy.
Some of them specifically deal with the various facets of human health and
environment.
These Directive Principles sometimes become complimentary to the fundamental rights
and are enforced by Courts of law. The following are some of the Directive Principles
related to environment –
1. Article 47: ‘The State shall regard the raising of the level of nutrition and standard
of living of its people and the improvement of public health as among its primary
duties…’
2. Article 48-A: ‘The State shall endeavour to protect and improve the environment
and to safeguard the forests and wildlife of the country.’
It has been declared time and again by Courts that Article 48-A is a constitutional
pointer,
mandate to the State and the State has to carry out its obligation provided under it.
Conclusion
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‘Polluter pays’ elucidates the phrase with reference to the relevant case law.
[16]
09, Dec 07, 06, Dec 06, Dec 05, Dec 04, Dec 03, Dec 02, Dec 01
Synopsis:
1. Genesis of Precautionary Principle
2. Polluter Pays Principle
• Part of the principle of sustainable development
• Absolute liability for harm to environment
• Pay cost of restoring environmental degradation
• Indian Council for Enviro-Legal Action v. UOI
• Deepak Nitrite Ltd. v. St. of Gujarat
Introduction: Basically, Precautionary Principle (PP) is a rule of evidence and
particularly it deals with the burden of proof in environmental cases. This principle shifts
the burden on the polluter – individual / industrialist / entrepreneur – to prove that his
activity / industry / process / operation is not a health hazard, damaging the environment
and his action is ‘environmentally benign.’
Earlier the concept of ‘assimilative capacity’ was prevailing which was provided by
Principle 6 of the Stockholm Declaration of 1972 (U.N. Conference on Human
Environment). This principle of assimilative capacity ‘assumed that science could
provide policy makers with the information and means necessary to avoid encroaching
upon the capacity of the environment to assimilate impacts and it is presumed that
relevant technical expertise would be available when environmental harm was predicted
and there would be sufficient time to act in order to avoid such harm.’
Later on the ‘Precautionary Principle’ approach was emphasized and the 11 th Principle
of
the U.N. General Assembly Resolution on World Charter for Nature, 1982 emphasized
for ‘Precautionary Principle’ in place of assimilative capacity principle. And ultimately
the Earth Summit - Rio de Janeiro Conference of 1992 declared it in unequivocal terms.
Principle 15 of the Rio Declaration on Environment and Development, 1992 provided:
“In order to protect the environment, the precautionary approach shall be widely applied
by States according to their capabilities. Where there are threats of serious or
irreversible
damage, lack of full scientific certainty shall be used as a reason for postponing
costeffective
measures to prevent environmental degradation.”
Later on, it was adopted by others.
The basis for the emergence of the principle is the non-availability of full information
about the widespread ramifications, serious and irreversible harm which may be
caused,
based on scientific experiments. This is known as ‘inadequacies of science’. It was
based
on the theory that it is better to err on the side of caution and prevent environmental
harm
which may indeed become irreversible and based on scientific uncertainty and
inadequacies of science.’
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The Indian Supreme Court has also adopted the Precautionary Principle but in a
modified
form. The Court adopting the principle explained that this principle has led to the special
principle of burden of proof in environmental cases where burden as to the absence of
injurious effect of the actions proposed is placed on those who want to change the
status
quo. The person who wants to maintain status quo by maintaining a less polluted state
should not carry the burden of proof and the party who wants to alter it by carrying on
some activity must bear this burden.
In case insufficient proof is presented, the presumption of the Court will operate in
favour
of environmental protection and the activity would not be allowed to operate or continue
to operate.
In the light of the above discussion and the problems present - day courts are facing,
the
Supreme Court has suggested to fortify the ‘appellate authority’ under the Water
(Prevention and Control of Pollution) Act, 1974, the Air (Prevention and Control of
Pollution) Act, 1981, the Hazardous Wastes (Management and Handling) Rules, 1989
and the National Environment Tribunal Act, 1995 by appointing Technical Members well
versed in environmental laws and special knowledge in scientific and technical fields
about environmental science/management. This will provide the courts with expert
opinion for ‘fair adjudication of disputes relating to environment and pollution.’
Polluter Pays Principle
The Supreme Court has also, in a recently decided case, held that this principle
envisages
‘precautionary protection against environmental hazards by avoiding or reducing
environmental risk before specific harm is expected.’ Thus it has become a part of the
principle of sustainable development.
In Fertilizers and Chemicals Travancore Ltd. Employees Assn. v. Law Society of India,
while applying the Precautionary Principle in a given situation, the ‘public interest’ must
be kept in view. Moreover, ‘we have to live with certain risks, which are counterbalanced
by services and amenities provided by these entities.’ Many factories, plants and utilities
are vulnerable to certain risk but they cannot be decommissioned or dismantled. We
have
to live with them if they are serving public interest and do not pose grave threat to the
environment. In this case the appellant, a fertilizer company was having ammonia
storage
tank. The petitioners contended that in the event of earthquake, Terrorist attack,
sabotage
or air crash into the tank, there would be human tragedy on account of leakage of
ammonia from the storage tank. While deciding if these should be relocated, the court
discussed the precautionary principle and decided the risk to environment or to human
health must be decided in public interest according to ‘reasonable person test.’
In Indian Council for Enviro-Legal Action v. Union of India, the ‘Polluter Pays Principle’
was explained: ‘Once the activity carried on is hazardous or inherently dangerous, the
person carrying on such activity is liable to make the loss caused to any other person by
his activity irrespective of fact whether he took reasonable care while carrying on his
activity. .
(a) The polluting industry is absolutely liable to compensate for harm caused to the
environment.
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PALLAVI BHOGLE 15
(b) He is also liable to pay the cost of restoring the environmental degradation -
reversing the damaged ecology.’
This principle means the ‘absolute liability’ for harm to the environment. Thus, it became
a principle of remediation of the damaged environment - a part of the process of
‘sustainable development.’
Now it is well settled that this principle has become a part of environmental
jurisprudence. But a study of the decision pronounced by the Supreme Court reveals
that
there still exist doubt with regard to its contents and scope. The Supreme Court in
Deepak
Nitrite Ltd. v. State of Gujarat got an occasion to explain the principle and its finer
contours. The court declared that the compensation to be awarded must have some
broad
correlation not only with the magnitude of the risk and the capacity of the enterprise, but
with harm caused by it. The Polluter Pay Principle can be applied only where it is
proved
that some damage has been caused to the man & material or to the environment by the
industrial unit by their activity. Mere violation of the legal provisions laying down the
standards does not attract this principle. In this case, a PIL was filed alleging that large
scale pollution has been causing by the industries located in Gujarat Development
Corporation Estate of Nandesari as the effluents discharged by the industries exceeded
the parameters fixed by the Gujarat Pollution Board. The High Court passed on order
directing industries to pay 1% of the maximum turnover of last three years by applying
the Polluter pays principle without ascertaining whether these were degradation of
environment or any of the component of environment.
Conclusion
Public Trust Doctrine [10]
08, Dec 05, 02, Dec 01, 01
Introduction: The Supreme Court, in M.C. Mehta v. Kamal Nath, declared in
unequivocal terms that – ‘Our legal system - based on English Common Law - includes
the public trust doctrine as a part of jurisprudence. The State is the trustee of all national
resources which are by nature meant for public use and enjoyment. Public at large is
the
beneficiary of the seashore, running waters, airs, forests and ecologically fragile lands.
The State as a trustee is under a legal duty to protect the natural resources; these
resources meant for public use cannot be converted into private ownership.’
Most of the judgments pronounced by Indian courts are based on this English Common
Law doctrine. This constitutional mandate to preserve the environment and maintain
ecological balance is a task of the ‘State’ under Article 48-A and the State should give
priority to such issues as they have wide and serious ramifications. Justice Chinnappa
Reddy in Sachidanand Pandey v. State of W.B explained: ‘Whenever a problem of
ENVIRONMENTAL LAW
PALLAVI BHOGLE 16
ecology is brought before the Court, the Court is bound to bear in mind Article 48-A of
the Constitution... and Article 51-A(g) which proclaims it to be the fundamental 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.’ When the Court is
called upon to give effect to the Directive Principles and Fundamental Duties, the Court
is not to shrug its shoulders and say that priorities are a matter of policy and so it is a
matter for the policy-making authority.
The term ‘protect’ indicates that the State has to protect the natural environment
whatever
we have and the term ‘improves’ indicates that the State must improve its quality if the
environment has degraded or is degrading. It provides a positive and dynamic
connotation, so that the State may deliberately take steps and impose restrictions on
the
use of resources which adversely affect the environment.
Constitutional obligation of Article 48-A has also been referred to by Courts in many
cases and they have based their judgments on it. In Consumer Education & Research
Centre v. Union of India, the Supreme Court declared that right to health, medical aid to
protect health and vigour of women is a fundamental right, if Article 21 is read with Arts.
39(e), 41, 43 and 48-A. Thus, the life of a workman becomes meaningful and purposeful
with dignity of person.
It is also a duty of the State to create awareness of the environmental issues and
education. Therefore, the Supreme Court accepted the syllabus prepared by NCERT for
introduction in all schools in the country.