BABASAHEB BHIMRAO AMBEDKAR UNIVERSITY

INTRODUCTION

The purpose of this assignment is to analyze the relationship between the right to clean
environment and the right to life as guaranteed under the Article 21 of the Constitution. The
person will be able to lead a good and happy life if he/she is healthy and is not suffering from
any health hazards and he is not denied any of his other Fundamental rights. Further, the
person will only remain healthy if he is living in the healthy environment and his surroundings
are clean. We need fresh air to breathe, fresh water to drink, shelter to live, etc. These all we
derive from the nature. So, in order to lead a dignified life one needs to protect his or her
environment.

So, in order to reflect all the ideas, my assignment firstly talk about the concept of Right to Life
under Article 21 of the constitution and how this concept has been broadened by the time.
Then, I will be discussing the basic background of the environment. Further, I will talk about the
Right to Clean Environment in relation to the Article 21 of the Constitution with the help of
cases. In order to maintain the clean environment, it is possible that the right to development
may be sacrificed. So, such types of issues are important to address in order to get the clear
understanding.

CONCEPT OF RIGHT TO LIFE

Article 21 of the Constitution of India deals with the protection of life and personal liberty
enshrined under the fundamental rights. This article states that-“No person shall be deprived of
his life or personal liberty except according to procedure established by law. 1”

This article is considered to be the most important article of all. Although all articles are equally
important but since it deals with our life which is the foremost thing for individual and also all
other rights of the individual revolve around this article, that is why, it is very important.
Though the phraseology of Article 21 starts with negative word but the word No has been used
in relation to the word deprived. The right to life is difficult to define as it is not just taking away
one's life rather it has a much wider application. Earlier the scope of Article 21 was a bit narrow
as it was held in A.K. Gopalan vs. State of Madras2 that “the personal liberty was confined to
freedom of detention and therefore, deprivation does not restrict upon the right to move freely
which came under article 19 (1) (d).”

1
M. P Jain, Indian Constitutional Law, 7th Edition, 2014, pg 1260
2
AIR 1950 SC 27

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But then the case of Maneka Gandhi vs. Union of India3 came which resolved the issue of
reasonableness of law with respect to article 14 and 19 and held that “the procedure must be
right, fair and not arbitrary, fanciful or oppressive.”

Then further it was argued that the ‘life' in Article 21 does not mean merely ‘animal existence'
but living with ‘human dignity'. In the case of Francis Coralie vs. Union territory of Delhi4, it
was held that “the right to life includes the right to live with human dignity which further
incorporates basic necessities like adequate nutrition, clothing and shelter and facilities for
reading writing and expressing oneself, freely moving and mixing and commingle with fellow
human beings.” Also, the minimum requirements like protection of the health and strength of
the workers and of the children against abuse, educational facilities, just and humane
conditions of work and maternity relief, etc must exist for a person to live with dignity. Then
from there onwards, Courts went on discussing cases about the right to life and thus, widened
the concept of Article 21. Now it includes right to food, water, shelter, clean environment,
education, medical care, privacy, etc. So, the Article 21 is actually like a mini constitution and it
was mentioned in the case of Unni Krishnan vs. State of Andhra Pradesh5 that “the Article 21 is
the heart of the Fundamental Rights.” So, the main object of this article is to prevent one's
personal liberty and deprivation of one's life against the acts of the State and the procedure of
law has to be strictly followed. But in my assignment, since I am concerned with the right to
clean environment within the ambit of Article 21 of the Constitution, so my entire focus now
will be on the relationship of environment with right to life. But again before actually dealing
with relationship, I would like to throw light on the basic background of environment.

Background of Environment

The term ‘environment' cannot be defined precisely as it is linked with many subjects like
ecology, biology, geography physiology, psychology etc. But, in the layman terms, environment
can be defined as the surroundings like natural resources, atmosphere, water bodies, etc in
which an individual or an organism lives. According to Einstein, “the environment is everything
that isn't me.6” The resources form an important part of an individual's life. Not only individuals
but also animals are dependent on the environment to fulfill their needs. Man is constantly
interacting with the environment in order to fulfill his needs. These needs include the basic
needs of oxygen, food and shelter in addition to the social needs like entertainment, medicines,
etc. In the earlier periods (Vedic period), the environment had been seen altogether differently.
There were ethical rules behind environment.

3
AIR 1978 SC 597
4
AIR 1981 SC 746
5
AIR 1993 SC 2178
6
James Marrow, Where the everyday begins: A study of Environment and Everyday life, 2017, p14

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According to S.C. Shastri7, “The main motto of social life since Vedic period was ‘to live in
harmony with Nature'. People used to worship plants, trees, Mother Earth, sky, water, air and
animals so as to be kind to everything. The Hindu religion enshrined a respect for Nature,
environmental harmony and conversation. The philosophy behind it was that these all are
creations of God, so destruction of nature means destruction of mankind.”

In the case of Rural Litigation and Entitlement Kendra vs. State of Uttar Pradesh8, it was
mentioned that, “air and water are the most indispensable gifts of Nature for preservation of
life. In ancient times, trees were worshipped as gods and forests were necessary for mankind as
they provided shelter. The world is considered to be the beloved place as it has the blessings of
nature's bounties.”

The crux is that in the ancient times, environment was considered to be an inseparable part of
one's life as a healthy environment is absolutely necessary for the well-being of all organisms.
All our needs, big and small are being met by the environment only. However, now the position
is changed. With the time, man's needs has also increased, he has become greedy. Man has felt
the urge to transform his surroundings to meet his increasing material needs and desires. He
started exploiting the resources of the earth and has been transformed from preserver to
destroyer. The problem of pollution is one which concerns most as it has gained threatening
position. So, the need has been felt to look into this matter seriously and for that purpose our
judiciary has tried to do a lot.

ENVIRONMENT AS A MATTER OF BASIC RIGHT

The concept of human rights in general emerged after the Second World War, but the right to a
healthy environment, as one of those human rights, was never a priority. Today, this right is an
emerging concept that is being hotly debated in the human rights arena. A healthy environment
is an essential aspect of the right to life, not only for human beings but also for other animals
on the planet. Violation, therefore, of the right to healthy environment is potentially a violation
of the basic right to life.

Environmental deterioration could eventually endanger life of present and future generations.
Therefore, the right to life has been used in a diversified manner in India. It includes, inter alia,
the right to survive as a species, quality of life, the right to live with dignity and the right to
livelihood. In India, this has been expressly recognized as a constitutional right. Article 21 of the
Indian Constitution states: 'No person shall be deprived of his life or personal liberty except
according to procedures established by law.'

7
S.C. Shastri, “Environmental Law”, 3rd Edition, Eastern Book Company, 2008, pg.8
8
AIR 1988 SC 2187

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The Supreme Court expanded this negative right in two ways. Firstly, any law affecting personal
liberty should be reasonable, fair and just. Secondly, the Court recognized several unarticulated
liberties that were implied by article 21. It is by this second method that the Supreme Court
interpreted the right to life and personal liberty to include the right to a clean environment.

ENVIRONMENT AND INTERNATIONAL PROTECTION

The human conference on human environment held at Stockholm in 1972. Popularly called as
the Magna Carta of human environment warned that the “natural resources of the Earth
including air, water, land, flora and fauna and especially the representative sample of natural
ecosystem must be safeguarded for the benefit of the present and future generations through
careful planning or management as appropriate.9” The Report on the World Commission on
Environment and Development suggested 22 legal principles for environmental protection and
sustainable development. ‘Caring for the Earth 1991’ and the ‘Earth Summit’ of 1992 also
declared that human beings are entitled to a healthy and productive life in harmony with
nature.10

ENVIRONMENT AND INDIAN CONSTITUTION

The relevant provisions of the Constitution of India are the backbone. India, 1950, certain
provisions of the Constitution relating to environmental protection and nature conservation are
not included. Perhaps, the country is now facing severe environmental problems through the
framers of the Constitution were not visualized. However, over the past five decades, the
progress of these two witnesses.

The Constitution (Forty Second Amendment) Act, 1976, passed through the seventies, when
the development took place. Schedule of the seventh - and a list of the third - specific
provisions related to certain aspects of the concurrent list, more particularly for the protection
of forests and wildlife, in Part IV - Directive principles of policy have been incorporated in the
Constitution. Part IV: Principles of State Policy Guidelines (Article 48A): the protection and
development of forests and wild life and protect the constitution specifically to environmental
protection and nature conservation is the following provisions: State to protect and improve the
environment and to protect the country's forests and wild life shall be seeking11.

Part IV A: Fundamental duty (Article 51 - A): It shall be the duty of every citizen of India - (g) to
protect the forests, lakes, rivers and wild life and the natural environment, including advanced,
and to have compassion for living creatures. Seventh Schedule (Article 246) of the third -

9
https://www.google.co.in/search?q=Stockholm+in+1972&oq=Stockholm visited on 20 Nov. 2017
10
http://www.un.org/geninfo/bp/envirp2.html, Vsited on 20 Nov. 2017
11
Mahendra P. Singh, V.N. Shukla's “Constitution of India”, 11th Edition, Eastern Book Company, 2008

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accompanying list of items. Animal cruelty reported in 17 of Prevention, Item no. 17A Forest,
Item no. 17B Protection of wild animals and birds. Even we can say that the real panic in India
came to be felt only after the Bhopal gas tragedy in 1984, yet it began concentrating on the
problem of pollution soon after the Stockholm conference.

India parliament passed many statutes to protect and improve the environment viz. Wildlife
(protection) Act, 1972; Water (prevention and control of pollution) Act, 1974; the forest
(conservation) Act, 1989; the air (prevention and control of pollution) Act,1981 and above all
the Environment (protection) Act, 1986.

ENVIRONMENT AND RIGHT TO LIFE

In order to proceed further it was necessary to present the picture of Article 21 and
environment in general. “Environment and life are interrelated and the existence of life on
earth depends on the harmonious relationship between ecosystem and environment.” Every
individual, from the moment of his birth, acquires certain rights. One such right is the right to
live in a clean environment.

While framing the Constitution of India, there was no mention of specific provision relating to
the protection of environment or conservation of nature. The problems were prevalent in the
earlier times also but they were very acute as the living of the people was simple and there
were not much industries, transport facilities etc. but now with the advancement in technology
and sciences, the problems have become grave. “In India, around 70% of the population directly
depends on the land-based occupations, forests, wetlands and marine habitats, for basic
subsistence requirements with regards to water, food, fuel, housing, fodder and medicines as
also for ecological livelihoods and cultural sustenance.”

The first major development related to the article 21 of the Constitution of India dealing with
‘the right to life'. The concept of the right to life has been broadened through the judicial
pronouncements12. While resolving cases relating to environment, the judiciary considered the
right to clean or good environment as fundamental to life and upheld as fundamental right.”

In my assignment, I am discussing the right to clean environment with respect to the provisions
of Article 21 of the Constitution. “The evolution of the right to health under Article 21 is
invariably linked with the right to a clean environment, no less because without the latter the
former was impossible.” Earlier there was a time when people thought of the environment,
they thought of its beauty, they used to maintain greenery, and most of the time they used to
spend in the fresh air, in a sense, there was an interaction between the environment and the
men. “But with the growth of civilized society, man has become more and more materialistic

12
Menaka Gandhi vs. Union Of India, AIR 1978 SC 597

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and in his endeavor to conquer the earth and establish his supremacy, unfortunately, he lost
sight of the need to protect and conserve the natural resources.” In the whole process, some of
the people do not understand the adverse effects of their harmful activities and as a result of
those few, innocent people have to suffer. They are being deprived of their right to life. Central
to all the issues is ‘pollution', which involves the introduction of harmful substances into the air,
land, and water.

Although this problem of pollution is not a new one but the only difference is that it was not
that acute problem as it is now and therefore, it is much recognized now. Pollution has a direct
impact on one's health, thereby, degrading one's life.

The Scholar Shubhankar Dam in his article talks about the risks posed by the households, the
workplace, outdoors and transportation to the health:

“The air which people breathe is of poor quality because of pollution all around in the
environment, thereby, causing hazards like acute respiratory diseases. The air pollution contains
different harmful chemical variants like carbon dioxide, hydrocarbons, sulphur and nitrogen
dioxide etc. when people are exposed to such air, then it can cause lung cancer, respiratory
infections, etc. because of these harmful chemicals. Noise pollution is associated with
miscarriages, physical deformities, deafness, hypertension, etc13.”

So, it is quite clear that the environment in which we live greatly affects our health. The
diseases from which people suffer are sometimes impossible to treat, thereby, leading to death
of an individual. So, unhealthy environment actually interferes with person's living life in dignity
and deprives him from his life. Therefore, the boundaries of the fundamental right to life and
personal liberty guaranteed in Article 21 were expanded to include environmental protection.
The right to clean environment is now being seen as an inbuilt constituent of the right to life
under Article 21.There is tide of Judicial Activism exhorting to adopt new dimensions along with
the right to life under article 21. Under the article 21 the term personal liberty means life in a
pollution free environment and if state fails to ensure reasonable environment, it would
amount to the violation of fundamental right to life and personal liberty under Article 21.

“Then the Supreme Court interpreted the right to life and personal liberty to include the right to
a wholesome environment.” The first attempt of the right to a wholesome environment i.e. the
issues relating to environment and ecological balance was recognized in the case of Rural
Litigation and Entitlement Kendra, Dehradun vs. State of Uttar Pradesh14. In this case, the
representatives of the Rural Litigation and Entitlement Kendra, Dehradun wrote to the Supreme

13
Shubhhankar Dam, “Green Laws For Better Health: The Past That Was And The Future That May Be - Reflections
From The Indian Experience”, 2004, 16 Geo. Int'l Envtl. L. Rev. 593.
14
AIR 1988 SC 2187

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Court alleging that illegal lime stone mining in the Mussorie-Dehradun region was causing
damage to the fragile eco-systems in the area. The Court treated this letter as a public interest
petition under Article 32 of the Constitution. And also several committees have been appointed
for the full inspection of illegal mining sites. All the committees came at the conclusion that the
lime stone quarries whose adverse effects are very less, only those should be allowed to
operate but that too after further inspection and all. Therefore, the Court ordered the closure
of a number of limestone quarries.

Although the Court did not mention any violation of fundamental right explicitly but ad
impliedly admitted the adverse effects to the life of people and involved a violation of Article 21
of the Constitution.

The concept of right to wholesome environment was also recognized in the case of Subhash
Kumar vs. State of Bihar15. In this case, the company in Jamshedpur carries on mining
operation against which the suit filed. The allegations were that the slurry gets settled in the
land affecting fertility of land, polluting the drinking water, thereby risking the health of people
living in surrounding areas. The Court held that “the right to life includes the right to enjoy
unpolluted air and water. If anything endangers or impairs the quality of life in derogation of
laws, a citizen has a right to recourse to Article 32 of the Constitution and also it said that
recourse should be by the person genuinely interested in the protection of society on behalf of
the community.”

Similarly, in the case of Virender Gaur vs. State of Haryana, there has been a great discussion
about the environment within its ambit of “hygienic atmosphere and ecological balance”. The
observation by the Court was that: “Article 21 protects the right to life as a fundamental right.
Enjoyment of life and its attainment including their right to life with human dignity
encompasses within its ambit, the protection and preservation of environment, ecological
balance free from pollution of air and water, sanitation without which life cannot be enjoyed.
Any contra acts or actions would cause environmental pollution. Environmental, ecological, air,
water, pollution, etc. should be regarded as amounting to violation of Article 21. Therefore,
hygienic environment is an integral facet of right to healthy life and it would be impossible to
live with human dignity without a humane and healthy environment. Environmental protection,
therefore, has now become a matter of grave concern for human existence. Promoting
environmental protection implies maintenance of the environment as a whole comprising the
man-made and the natural environment16.”

15
AIR 1991 SC 420
16
(1995) 2 SCC 577 (at 580)

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So, in this regard no doubt the State has the foremost responsibility to take care of individuals
by protecting and improving the environment. But at the same time, every citizen also has to
contribute his help to the government in maintaining the hygienic environment.

Most of the environmental cases are related to pollution of hazardous gases, wastes disposal,
etc. the world industrial disaster took place in the year 1984 which is referred to as ‘Bhopal Gas
Disaster case'. The Bhopal plant of Union carbide India Ltd (UCIL)17, an Indian company which
was a subsidiary of the Union carbide Corporation, USA (UCC) was set up. On the midnight of 2-
3 December in 1984 there was a massive leak of methyl isocynate from this plant which killed
more than 3000 persons and serious personal injuries. The whole surrounding was covered
with the black smoke of hazardous chemical gas. But the court could not reach any conclusion
that by the time another disaster happened in Delhi which was not as that severe as the Bhopal
tragedy.

This other incident was referred as the Oleum Gas Leakage case18. In this case, there was a leak
of oleum gas from a factory in Delhi of Shri Ram Foods and fertilizer Industries which enveloped
the parts of Delhi in yellow smoke. Although the chemical gas was not that toxic and harmful as
that was in Bhopal gas case, but there were some adverse effects to the people living in that
surrounding. Through this case only rule of ‘absolute liability' established which says that the
enterprise will be liable no matter even if there is an act of God like earthquake, floods etc or
an act of terrorism or enemy action. The Court suggested that ‘an enterprise which is engaged
in a hazardous or inherently dangerous industry which poses a potential threat to the health
and safety of the persons working in the factory and residing in the surrounding areas owes an
absolute and non-delegate duty to the community to ensure that no harm results to anyone on
account of hazardous or inherently dangerous nature of the activity which it has undertaken
and therefore, such corporations would be subjected to the limitations of right to life under
Article 21 of the constitution.”

Then this case was referred to solve the Bhopal gas leak case. The effects of this tragedy were
so adverse, people developed many diseases. This incident happened long time back but the
after effects are still known. The mothers who were pregnant at that time gave birth to disables
children and children suffering from severe diseases. If a person is not able to live his life
properly, his health is not perfectly fine then, his/her life cannot be said to be dignified life.
Such type of corporations for their profits does not take care of the after effects of their
activities and the result is in front of all of us.

17
AIR 1990 SC 273
18
AIR 1987 SC 965

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All the above cases which I have mentioned in some sense talk about the industrial pollution
which is not just limited to that. Another landmark case which also supported the view that the
right to a healthy environment is part to life under Article 21 of the Constitution is the ‘Ganga
Pollution case19'. In this case, a writ was filed mentioning that the industries mostly tanneries
located on the banks of the river and populated areas of Kanpur and Calcutta were discharging
highly toxic trade effluents into the river Ganga. As a result of which the water in the river
Ganga could no longer be used by the people either for drinking or any other purposes. The
Court held that “the polluting tanneries have to be closed down even though it would bring
unemployment, loss of revenue because the preservation of life, health and ecology are the
most important than anything else”.

It's not just about the life of the people who get affected, also the animals who drink this
water. Although they cannot go to the Court that does not mean their life is nothing. So, the
water-pollution problems (especially discharging noxious and poisonous matter into rivers)
should be dealt with strictness.

In T Damodar Rao case20, the Andhra Pradesh High court held that the slow poisoning by the
polluted atmosphere was a violation of Article 21 of the Constitution. In this case, the High
Court enunciated: it would be reasonable to hold that the enjoyment of life and its attainment
and fulfillment guaranteed by the Article 21 of the Constitution embraces the protection and
preservation of nature’s gift without which life cannot be enjoyed. There can be no reason why
practice of violent extinguishment of life alone should be regarded as violate of Article 21 of the
constitution. The slow poisoning by the polluted atmosphere caused by environmental
pollution and spoliation should also be regarded as amounting to violation of Article 21 of the
constitution.

Mohit Singhvi in his article mentioned the observation by the Supreme Court, “Water is a gift
of nature. Human hand cannot be permitted to convert this bounty into a curse, oppression and
the primary use to which water is put being drinking, it would be mocking nature to force the
people who live on the bank of a river to remain thirsty21."

Now the other aspect is that of smoking. People smoke after knowing the ill effects of smoking
and also corporations support them in the sense by providing them with cigarettes. Tobacco
smoking definitely contributes to the air pollution as tobacco smoking contains harmful
chemicals like nicotine, tar, carbon monoxide and other smoke particles. When people smoke,
these harmful substances get mixes in the air which we breathe, therefore is responsible for

19
((1987) 4 S.C.C. 463)
20
T. Damodhar Rao And Ors. vs The Special Officer, Municipal, AIR 1987 AP 171
21
Mohit Singhvi, “Water Management - Law and Policy in India, 2012

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various fatal diseases including cancer.22 In the case of Murli S. Deora vs. Union of India23, it
was pointed out by the Court that: “Since article 21 of the Constitution guarantees that none
should be deprived of their life, then why should a non-smoker become the victim of the whole
process? It was contended that smoking is injurious to health and may affect the health of
smokers but there is no reason that health of passive smokers should also be injuriously
affected. So, till the statutory provision is made and implemented by the legislative enactment,
it was held that it would be in the interest of the citizens to prohibit smoking in public places and
the person not indulging in smoking cannot be compelled to passive smoking on account of the
acts of the smokers.”

There are a lot of after effects of this dangerous activity. There are psychological effects of
smoking. Pregnant women who smoke, they don't realize that they are actually the accusers of
their kids. Children of such mothers are likely to born with low birth weight, small brain, short
term memory span, are likely to get addicted to smoking, etc.

Subhash Kumar v. State of Bihar24, in the instant case the Court observed that ‘right to life
guaranteed by article 21 includes the right of enjoyment of pollution-free water and air for full
enjoyment of life.’ Through this case, the Court recognized the right to a wholesome
environment as part of the fundamental right to life. This case also indicated that the
municipalities and a large number of other concerned governmental agencies could no longer
rest content with unimplemented measures for the abatement and prevention of pollution.
They may be compelled to take positive measures to improve the environment.

M.C. Mehta vs. Union of India (Vehicular Pollution Case)25

A matter regarding the vehicular pollution in Delhi city, it was held to be the duty of the
Government to see that the air did not become contaminated due to vehicular pollution. The
Apex court again confirming the right to healthy environment as a basic human right and stated
that the right to clean air also stemmed from Art 21 which referred to right to life. This case has
served to be a major landmark because of which lead-free petrol supply was introduced in
Delhi. There was a complete phasing out old commercial vehicles more than 5 years old as
directed by the courts.

22
Ronald J. Rychlak, “Cards and Dice in Smoky Rooms: Tobacco Bans and Modern Casinos”, 2009, 57 Drake L. Rev.
467
23
AIR 2002 SC 40
24
AIR 1991 SC 420
25
W.P.(Civil) No. 817 of 2015

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T.N. Godavarman Thirumulpad v. Union of India26

In this very recent case concerning conservation of forests, Justice Y.K. Sabharwal, held that,
considering the compulsions of the States and the depletion of forest, legislative measures have
shifted the responsibility from States to the Centre. Moreover any threat to the ecology can
lead to violation of the right of enjoyment of healthy life guaranteed under Art 21, which is
required to be protected. The Constitution enjoins upon this Court a duty to protect the
environment.

M.C Mehta v. Union of India27, in this case the Supreme Court has given certain directions to
remove environmental illiteracy were given-
 Cinema halls/video parlors to exhibit not less than two slides on environment prepared
by the ministry of environment.
 Doordarshan and AIR to allot 5-7 minutes daily for interesting programs on
environment.
 Environment be made a compulsory subject in a graded way in schools and colleges and
universities shall prescribe a course for the same.

M. C Mehta v. Kamal Nath28

Supreme Court made it crystal clear that any disturbance of basic environmental elements
namely air, water and soil which are necessary for life would be hazardous to life and can’t be
polluted. (Hotel was discharging effluent into river and hence causing disturbance to aquatic life
and water sanitation).

M.C Mehta v. UOI29

Also famous as the Taj Trapezium case, in which industries were asked to shift from the use of
coke/ coal to natural gas. For those who can’t will have to stop functioning.

P.A. Jacob v. Suprintendent of police, Kottayam30

In this case the Kerala high Court held that the freedom of speech does not include freedom to
use loudspeakers or sound amplifiers to cause noise pollution and risk to human health.

26
2003 (6) Scale 354
27
1988 AIR 1115
28
AIR 2002 SC 1997
29
(1997) 2 SCC 353
30
AIR 1993 ker. 1

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T.K. Koolwal v. State of Rajasthan31

The High court extended the right to know to entitle a person to have complete information
about the sanitation programme of the municipal corporation. Hence, the citizens’ access to
official environmental information within reasonable limits is now a guaranteed right.

Indian council for Enviro-Legal action v. Union of India32

It is also popularly known as the coastal zone protection case, the apex court took a serious
view of the executive’s lethargic attitude in implementing the laws meant for the protection of
right to life and directed them to implement the relevant laws strictly to maintain ecological
balance.

Even the Principle of ‘Sustainable Development' came to be recognized in which says that
there must be a balance between development and ecology. “Economic development without
environmental considerations can cause serious environmental damage affecting the quality of
life of the population, both present and future.” Therefore, there is an urgent need to maintain
a balance between the demands of development and the levels of environmental protection in
order to ensure sustainable development. Since pollution is the major cause of environmental
degradation and of imbalance, so, pollution control will be of greater significance for
sustainable development.

Some of the basic principles of sustainable development include:

 Inter-Generation Equity which talks about the right of every generation as the most
important principle of ‘sustainable Development'.
 The Precautionary Principle: this principle has been considers as the most important
principle of sustainable development. It means-
 Environmental measures by the state government and the local authority must
anticipate, prevent and attack the causes of environmental degradation.
 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.
 The ‘onus of proof' is on the actor or the developer to proof that his action is
environmentally benign.
 Polluter pays principle: it is quite obvious that the object of the above principle was to
make the polluter liable not only for the compensation to the victims but also for the
cost of restoring of environmental degradation. Once the actor is proved to be guilty, he

31
AIR 1988 Raj. 2
32
(1996) 5 SCC 281

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is liable to compensate for his act irrelevant of the fact that whether he is involved in
development process or not33.

The two principles, that is, the polluter pays principle and the precautionary principle came to
be recognized in the case of Vellore Citizen's Welfare Forum vs. Union of India34. In this case,
water pollution has been caused by the tanneries. “The Supreme Court recognized the common
law right of the people to a clean and healthy environment and awarded compensation to the
victims of pollution on the basis of the ‘precautionary principle' and the ‘polluter pays principle'
and also held that these both principles are a part of the environment.”

DELHI AIR POLLUTION ISSUE

Currently the smog and poor air quality in National Capital Region has become an important
issue of pollution. Even right to clean environment is our fundamental right but we are suffering
from such poor air quality and smog which has resulted in many dangerous health problem and
has become a big threat to public peace. Some thinkers suggests that The current smog and
poor air quality in the National Capital Region has been blamed in part on stubble burning by
farmers, especially in neighboring Punjab and Haryana. This belt produces an estimated 34
million tons (mt) of paddy straw every season, of which some 23 mt is from combine-harvested
fields and burned within less than a month’s span. A bench headed by Chief Justice of India
Dipak Misra issued the notices on a PIL filed by Advocate R K Kapoor, to the Centre, the
governments of Delhi, Haryana, Uttar Pradesh and Punjab and three municipal corporations of
Delhi on a plea seeking steps to tackle rising air pollution in the capital and NCR areas.
However, the apex court said it will not stop any other court from hearing cases related to
pollution in Delhi. The petition wanted the Centre to provide more subsidy and schemes to the
states to help them deal with the issue of stubble burning. It also sought steps to clean dust at
construction sites — another contributor to air pollution — using vacuum cleaners or by
sprinkling water and also requested the court to direct the government to promote the use of
solar energy and electric vehicles. The bench also asked the court-appointed committee, EPCA,
to suggest long-term measures to avoid an “emergency-like” situation in Delhi. “Why don’t you
give steps to be taken to prevent the occurrence of such a situation?” Delhi Government has
responded on this issue and implemented the odd-even Rule for tackling the issue of pollution
in Delhi. In odd-even scheme, vehicles whose registration number ends on even digits are
allowed to ply on even dates like 0, 2, 4, 6, 8, and 10 and so on. Similarly, vehicles having their
registration numbers ending on odd digits, are allowed to ply on odd dates such as 1, 3, 5, 7,
and 9 and so on35.

33
S.A.Atapattu, Emerging Principle of International Environmental Law, Vol.7, 2007, pg 438
34
AIR 1986 SC 2715
35
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Even The National Green Tribunal (NGT) has allowed the Delhi government to go ahead with
the Odd-Even scheme implementation in the Delhi-National Capital Region (NCR), but with
certain conditions. The Energy Policy Institute at the University of Chicago (EPIC) and Harvard
University had found reductions in pollutants in the afternoon hours in Delhi because of the
strict adherence of Odd-Even Scheme. According to the study, PM 2.5 declined by 13 per cent
on an average during the odd-even period36.

The Constitution of India is the main source of incorporating right to clean environment.
Though the other important work of legislation is the Environment (Protection) Act, 1986 which
provides a framework of coordination of activities between the Central government and the
State government to prevent and control environmental pollution and degradation. Since the
need for the protection of environment has been felt, so in this regard the two major
developments have been take place in our Constitution. Now, with the help of various articles
and cases, it is very clear that environment is one of the most important which directly affect
our health, thereby can lead to fatal diseases also. In turn all of these deprive a person from his
right to dignified life. “While the highest human right accorded to a person is the right to life,
that right could become meaningless if the environment in which the person is living is so
degraded that, in effect, the right to life is threatened.” But there are some questions remain
unanswered which are difficult to answer. This aspect I am discussing under the next heading.

Right to Development Vs. Right to Environment and Other Aspects

For a person to live a dignified life, a clean environment is the mandatory. But then, in order to
maintain healthy environment, we have to lose out on other aspect, that is, Right to
Development. India is a developing country and in order to compete with the world as a whole,
development of our country is really essential. Development is necessary to ensure the
fulfillment of all human rights and fundamental freedoms. “Industry is important for the
development of a country and for meeting the growing demands of the people. At the same
time, it has a negative impact on the environment as it extracts materials from natural
resources and injects both products and pollution into the human environment.”As I have
already discussed a lot of cases and industries are the main cause for an unhealthy
environment, thereby, reason for violation of Article 21 of the Constitution. So, for that such
industries which produce noxious substances and endanger the surroundings are needed to be
closed which is the best way to stop the pollution at its roots. But again that means we are
preventing our country from development.

36
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The population is growing at a faster paste and therefore, there is an urgent need to cut trees
in order to provide people with shelter and trees are also required for industrial purposes to
fulfill their demands. This means we have no other option left rather to destroy the
environment.

So, a man's indiscriminate use of land, water and air ha considerable impaired their quality so
that they are no longer fit even for his own needs and purposes. Although population can be
controlled if people are made aware, if they will get education but then also till what extent it is
possible. Still population will continue to increase; they will continue to increase their demands
in terms of shelter, luxuries, etc.

According to Gandhian philosophy, “Nature has provided everything for our need but not for
greed.” If they be denied to cut trees in order to get shelter, then again that means they are
being denied their right to live, that is, their right to life and personal liberty are violated. If an
activity is allowed to go ahead, there may be an irreparable damage to the environment and if it
is stopped, then, there may be irreparable damage to economic interest. Then the other remedy
could be that the industries can be shifted. But does that solve the problem? To some extent it
does solve the problem but what about the rights of those who are employed in such industries.
They have to sacrifice their life for their families. It is not possible to ensure this right to all as
there are some who are left, that is, the people who work for such industries. The poor people
have to bear the main brunt of these environmental problems. 37

37
Gandhi M.K.,Quoted by Mathurs (Ed.), ETMG, pp 476

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Conclusion

Earlier the article 21 of the Constitution had a bit narrow scope but with the time, the concept
of Article 21 has been broadened. The Judiciary has played a vital role in interpreting the Article
21 of the Indian Constitution. The scope of Article 21 of the Constitution has been considerably
expanded by the Indian Supreme Court, which has interpreted the right of life to mean the right
to live a civilized life and it also includes the right to clean environment. But the Constitution
does not explicitly provide for the citizen's right to a clean and safe environment.

Earlier in the ancient times, the hazards of the environment were not that recognized but now
with the advanced technology and increasing population the adverse effects are clearly
recognized. Industries contribute to the environmental pollution which proves to be very
harmful for the health of the citizens, thereby, degrade g their right to life. Then smoking is also
the main contributor to the pollution in the environment. Although many orders have been
passed against smoking but nothing fruitful is coming out. If the orders were to hold any
meaning then, no person in India should have now been smoking in public places.
Environmental conservation is the principle concern of the present times. It is the, most urgent
necessity, because a pollution free environment is a foremost requirement for the health and
safety of mankind. Further, environment and development are considered to be the two sides
of the same coin. Any one of these cannot be sacrificed for the other. Rather, both are equally
important for the betterment of our future. But nonetheless, without concerning for the loss of
private profit, the preference has to be given to the public health and to the clean environment.
The ultimate responsibility lies on the Courts to deal with these cases efficiently and with great
caution. Such type of environmental issues can be handled properly if people are educated and
are aware of their activities. Also, the government has to take strict measures with proper care
against the hazardous industries. Each individual shall have the opportunity to access to the
information concerning the environment. States shall facilitate and encourage public awareness
and participation by making information widely available.

A healthy environment is an absolute necessity for the well-being of all organisms. But then
again is it possible to make the environment completely pollution free environment. So, the
question which remains unanswered is the “is the right to healthy environment guaranteed or is
it illusory?”

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BIBLIOGRAPHY

BOOKS

 Mahendra P. Singh, V.N. Shukla's “Constitution of India”, 11th Edition, Eastern Book
Company, 2008
 S.A.Atapattu, Emerging Principle of International Environmental Law, Vol.7, 2007
 S.C. Shastri, “Environmental Law”, 3rd Edition, Eastern Book Company, 2008
 M. P Jain, Indian Constitutional Law, 7th Edition, 2014

RESEARCH PAPERS AND JOURNALS

 Shubhhankar Dam, “Green Laws For Better Health: The Past That Was And The Future
That May Be - Reflections From The Indian Experience”, 2004, 16 Geo. Int'l Envtl. L. Rev.
593
 Ronald J. Rychlak, “Cards and Dice in Smoky Rooms: Tobacco Bans and Modern
Casinos”, 2009, 57 Drake L. Rev. 467
 Mohit Singhvi, “Water Management - Law and Policy in India, 2012

EXTERNAL LINKS

 http://indianexpress.com
 http://www.un.org
 http://www/lawyersclub.com

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